Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 4 - Evidence for December 13, 2007
OTTAWA, Thursday December 13, 2007.
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 10:47 a.m. to study Bill C-11, An Act to give effect to the Nunavik Inuit Lands Claim Agreement and to make a consequential amendment to another act.
Senator Joan Fraser (Chair) in the chair.
[Translation]
The Chair: Welcome to our witnesses. I thank them for appearing before the Standing Senate Committee on Legal and Constitutional Affairs. We continue our study of Bill C-11, An Act to give effect to the Nunavik Inuit Lands Claim Agreement and to make a consequential amendment to another act.
[English]
We will hear from three panels of witnesses this morning, beginning with the Grand Council of the Crees (Eeyou Istchee). We have Grand Chief Matthew Mukash and Me Robert Mainville, Legal Advisor. They will be followed by a representative from the Government of Nunavut. Later we will hear from officials from Indian and Northern Affairs Canada, whom we had before us last evening. They agreed to appear again today.
Welcome and thank you for being here.
Matthew Mukash, Grand Chief, Grand Council of the Crees (Eeyou Istchee): Thank you. We have with us also Chief Roderick Pachano, one of the principal negotiators on the offshore file.
The Chair: I did not have you on my list. I apologize for that.
Mr. Mukash: Good morning. I am pleased to have been invited to the Standing Senate Committee on Legal and Constitutional Affairs in order to speak in favour of the adoption by the full Senate of Bill C-11 concerning the Nunavik Inuit Land Claims Agreement act.
I shall briefly provide you with some background information on the James Bay Cree and then explain our interest in the legislation and in the Nunavik Inuit Land Claims Agreement. Then I will state the principal reasons that the Grand Council of the Crees (Eeyou Istchee) supports this legislation.
The James Bay Crees number approximately 15,000 individuals grouped into 10 communities. The James Bay Crees are represented at the regional level by the Grand Council of the Crees (Eeyou Istchee), which was created in 1973 to defend and uphold all collective rights of the Crees. I am the elected Grand Chief of this Cree regional government.
We have occupied since time immemorial the entire watershed of James Bay and Southern Hudson's Bay, located in the province of Quebec. Our ancestors occupied this land and sustained their livelihood from it through hunting, trapping and fishing. Most of our traditional territory is divided into well-defined geographical areas known as traplines. Each trapline is managed by a Cree individual called a tallyman, who sees to the maintenance of the land and controls the harvesting activities carried out on the trapline.
We have lived in peace and harmony in this area for thousands of years. We have usually maintained very good relations with our neighbours, in particular with the Inuit who live north of our traditional territory. For a very long time, we have shared with the Inuit some common harvesting areas in the northern part of our territory. Moreover, we have tried to maintain good and friendly relations with the Inuit, and these relations have been quite strong over the last few decades.
In this regard, it is interesting to note that one of our communities, the Cree community of Whapmagoostui, from which I originate and where I still reside, is adjacent to the Inuit community of Kujjuarapik. Both communes share many services and a common geographical space. In addition, our largest community, Chisasibi, also comprises a small but well-respected, distinct community of Inuit. As you can note, we have close relations with our neighbours, the Inuit.
In the early 1970s, the Government of Quebec announced massive hydro development and the flooding of a large portion of our traditional lands. We strongly opposed this development, and with our friends and neighbours, the Inuit, we went to court to attempt to halt this development. We were at first successful when in 1973 the late Justice Malouf issued an injunction halting the construction of the hydro project on the basis that this project was being carried out without any regard to our Aboriginal rights in the territory and to the Aboriginal rights of our neighbours, the Inuit. Unfortunately, the Quebec Court of Appeal reversed this court decision a few days later. Nevertheless, the governments were quite shaken by the decision of Justice Malouf and decided to offer to negotiate a new treaty with the Inuit and us.
It is in this context that the 1975 James Bay and Northern Quebec Agreement was negotiated. This was the first so- called modern treaty in Canada. The James Bay and Northern Quebec Agreement was a very special treaty in that it involved both the Cree and the Inuit. Indeed, the provisions of this treaty apply to both groups who negotiated simultaneously the terms of the James Bay and Northern Quebec Agreement.
However, the James Bay and Northern Quebec Agreement did not settle all the claims of the Inuit and the Cree. Indeed, by its very terms, its application was limited to Quebec, and the outstanding claims of the Cree and the Inuit in the areas offshore of Quebec, including in James Bay and Hudson's Bay, were left to be negotiated for another day. At the time of the signing of the James Bay and Northern Quebec Agreement in 1975, the Government of Canada formally committed itself in writing to negotiating separate treaties with the Cree and the Inuit concerning these offshore claims.
Shortly after the signing of the James Bay and Northern Quebec Agreement in 1975, negotiations were thus initiated with Canada in order to resolve these offshore claims, but these are were difficult negotiations. I will not provide you with the history of the long and arduous negotiations that have been carried out for over 30 years to resolve these claims. I will, however, note that it has taken 32 years for the Inuit to have a treaty covering the offshore area, and the Crees are still negotiating to this day. These delays are unfortunately typical of the land claims negotiations process carried out by the Government of Canada.
In any event, governments did not properly implement the James Bay and Northern Quebec Agreement, and this forced the Cree to initiate complex litigation against the governments of Quebec and Canada. These litigations were resolved in 2001 through a new agreement with the Quebec government, and we are hopeful to soon be able to resolve this litigation with Canada through the recent new relationship agreement, which was ratified last October through a referendum of the Cree population and which should soon be signed by Canada.
In regard to the offshore claims, as noted previously, negotiations were proceeding very slowly. However, the Cree and Inuit parties remained hopeful of some day resolving these claims.
One of the obstacles put before us by the federal government concerned the areas of overlapping interests between the Crees and Inuit in the offshore. Canada was delaying resolution of both of our claims using the excuse that we had not resolved among ourselves our overlapping claims. We took the government to task on this matter, and in 2003 the Crees of Eeyou Istchee and the Nunavik Inuit entered into an Agreement relating to the Cree-Inuit Offshore Overlapping Interest Area, which I will refer to as the overlap agreement.
The overlap agreement is one of the first overlapping claims agreements in Canada, and it is clearly an innovative and important document that can show the way to the resolution of other overlapping claims across Canada. Under this overlap agreement, a portion of the offshore area has been identified as being of common interest to the Inuit and the Cree.
Three zones have been identified in this area. The first a joint Inuit-Cree zone where the Cree and Inuit will have joint and equal ownership of lands and will jointly and equally share their interests, benefits and revenues. The second zone is an Inuit zone where the ownership of land will be to the Inuit, but where the Cree and Inuit will share wildlife and harvesting activities. The third is a Cree zone where the ownership of land will be to the Cree, but where the Cree and Inuit will also share wildlife and harvesting activities.
The overlap agreement has been formally incorporated into the Nunavik Inuit Land Claims Agreement and is reproduced in Schedule 28-1 of that agreement. Consequently, many of the rights of the Cree and Inuit in this overlap agreement will come to life through the coming into force of the Nunavik Inuit Land Claims Agreement by the adoption of Bill C-11.
This is why the Grand Council of the Crees, Eeyou Istchee, has a direct interest in the successful adoption of this bill by the Senate. Indeed, should the bill not be adopted, both the Inuit and the Cree would lose the benefit of the formal recognition by government of the Aboriginal ownership of lands located in the overlap area, including joint Cree-Inuit ownership of the substantial land interests located in the joint Inuit-Cree zone. This is an outcome that we would not accept.
Therefore, as Grand Chief of the Cree Nation, I call upon the Senate to approve this bill and allow finally an end to the more than 30 years of negotiations concerning this matter.
Please note that the Cree Nation is itself still in negotiations with the Government of Canada concerning the Cree offshore area. We are confident that we will reach an agreement on this matter with Canada early in 2008. However, should Bill C-11 not be adopted, this could place a cloud over our current successful negotiations with Canada in light of the fact that many of the provisions of the draft treaty we are negotiating are similar — though not always — to those found in the Nunavik Inuit Land Claims Agreement.
Finally, I wish to make a brief comment on the questions raised by Senator Watt in regard to this legislation. We have reviewed the position of Senator Watt, and I must say that he raises some important and serious issues, particularly as concerns the certainty provisions of the treaty and the fact that Nunavut laws are to apply in the offshore area, when almost all Crees and Inuit using this area reside in Quebec. These are issues that we have ourselves raised with the federal government in our own negotiations. We are hopeful that we will soon find the proper accommodations that will satisfy both the governments and the Cree Nation in this regard. However, this does not mean that we support killing the legislation or delaying its adoption.
Issues relating to transactions involving Aboriginal rights are indeed always very serious, and they raise very important human rights considerations. In this case, it is important to note that though there does appear to be some form of non-assertion provision in regard to Inuit Aboriginal rights, the treaty nevertheless recognizes Aboriginal ownership of lands in the offshore. In addition, the treaty provides for many important benefits for Aboriginal peoples in the marine areas. Any discussion of the certainty provisions must thus be understood in the context of this treaty, where 80 per cent of the land will be recognized as being wholly owned by Aboriginals.
Here the Aboriginal parties are somewhat faced with the same dilemma they faced in 1975: either to accept some form of certainty provisions in the treaty in exchange for clear treaty recognition of land rights and other rights, or wait numerous decades for a possible and perhaps improbable change in government policy dealing with certainty. I am confident that the leadership of Makivik Corporation has dealt with this issue in this new treaty in the same serious and considered fashion as was done by the leadership in 1975 in regard to the James Bay and Northern Quebec Agreement — both having the long-term interests of the Aboriginal populations they represent foremost in their minds.
Thus, though we have some understanding of the points raised by Senator Watt in this regard, the issue goes way beyond this treaty and concerns the application and content of the entire comprehensive claims policy of Canada in regard to the certainty provisions. We fully support a debate on this issue; and perhaps the Senate could call upon Canada to justify its policy through committee hearings or otherwise. This should be dealt with holistically for all Aboriginal groups through a policy revision and not as an excuse to delay the adoption of a long-awaited agreement.
The Chair: Thank you very much, Grand Chief Mukash. I repeat that this is a very full day. We have a list of people who want to put questions. I will ask senators to keep their preambles to a minimum and get straight to their questions so as to allow as many questions as possible.
Senator St. Germain: I will try to make my question succinct and to live by the guidelines set down by our chairperson. This agreement has been delayed now, because it was ready to go prior to prorogation. You said that it could impinge on your offshore negotiations in regard to the Cree Nation in this particular region. Could you explain that further?
Also, why are 80 per cent of lands in these offshore islands owned instead of 100 per cent? What about the other 20 per cent? Why did they not get 100 per cent? Perhaps I should ask Mr. Molloy this, but I would have gone for the whole bundle.
Mr. Mukash: On the question of the offshore negotiations, do not forget that this is all in relation to the original 1975 agreement. We have waited 32 years and we are still waiting. This is an outstanding issue.
My colleagues around the table are the negotiators regarding land claims on the offshore. I will get Chief Roderick Pachano to comment on that.
Roderick Pachano, Chief, Grand Council of the Crees (Eeyou Istchee): As the Grand Chief has stated, the biggest impact delaying this would have would be on the trust that has been built up between the governments and the Crees in these negotiations. Once you have broken the trust, I believe that it is very difficult to get it back again.
We are not talking about setbacks only in terms of the delay in passing this particular piece of legislation. We are talking about the impacts that go beyond that. How can we, the Cree people, trust the government, including this chamber? That would be the biggest problem, in my view.
Insofar as the land quantum goes, I am sure we would not refuse 100 per cent. We would not refuse all of that.
Senator St. Germain: The implementation aspect has been very frustrating for First Nations. It is a real issue for one of the other committees I sit on. I think the Grand Chief of the Cree has laid it out.
Senator Watt: I would like to welcome the Grand Chief and his colleagues.
I will start by saying that I understand you do not wish to harm this agreement in any way, shape or form and would like it to move forward. I also sympathize with your colleague mentioning lack of trust. When that is not there, it is hard to move things forward. I realize that. I have been there.
However, that is not the only issue that, as representatives, we should keep in mind. Whatever the consequences might be, they will be everlasting. The most important to me, as a senator, is the people who will be inheriting this and will have to live with it for time immemorial.
Neither am I here to obstruct this process. I am here for justice — nothing more, nothing less.
Yesterday, some of you heard what is being discussed. Unfortunately, I felt pretty small in some ways. I felt heavily attacked by the department, my representative and my legal counsel, which I have wholeheartedly trusted over the years. My trust in them has diminished, to a certain extent, in terms of recognizing who they are.
I do not have many questions. I just wanted to illustrate again, Mr. Mukash, that I appreciate the fact that the two issues you raised in regards to Nunavut having a law-making ability over the area that is adjacent to your lands and islands. I do not know what that will bring. I have the same concerns regarding the Inuit on the Quebec side.
When you are judging it from the standpoint of a provincial government, what is usually important is what is adjacent to them. They want that power in their hands. Unfortunately, due to the fact that this falls under federal jurisdiction, our rights will be administered from a distance. Even though we will have the ability to participate and have a recommendatory function set by the instruments of this agreement, people will be making decisions on us from a distance. At the same time, our responsibility is to send those boards will also involve implementing Canadian law. There are heavy restrictions, such as natives having a lack of access to certain things of importance. That concerns me. I am grateful Mr. Mukash raised the concern that I share.
On the question of certainty, this is bigger than an isolated issue of dealing with Bill C-11. I have been here for 23 years, and I have been trying to find to negotiate through all of this. Mr. Mukash, you and I share this concern. I remember when we were negotiating; you were in law school in Montreal. We spent many nights talking about this issue. The problem still has not been resolved.
I believe other countries, such as Australia, are still wrestling with it, but they are much further ahead than we are today in terms of how Aboriginal rights are perceived and how they coincide with the new laws that oversee matters today.
I am not sure this policy has ever been put to the test to be ratified by the parliament to be discussed thoroughly. One day, we hope to be able to do that. I am using this case because I have been here for 23 years and I have been trying to find a way to hold onto something and make this a subject issue to be dealt with. There have not been any.
Unfortunately, I must take Bill C-11 as a device because I am a beneficiary. It deals with my people and not anyone else, other than the Crees. I also consider the Crees my people because I have been negotiating with them since the 1970s; negotiating with them, winning and losing cases and going back to the negotiating table. They are my neighbours, and I consider them my people. I do not see a difference between the Inuit and the Crees in this area. We have been working together. I am sorry I have such a long preamble to my question.
I know that you have won versus the government a 10-year environmental case regarding Doré Lake mining. This arose out of the fact that they were subject to the interpretation of French and English. In the argument, the Crees maintained that the James Bay and Northern Quebec environmental regime applies. The federal government turned around and said no; the federal regime applies on top of that as well. The Crees have been wrestling with this over the years. It is still in the courts today.
In the act itself there is a section with no French and English. It is subject to interpretation. We may think that is not a big issue, because it can be corrected, but they never got around to correcting it. This is a critical issue. As you mentioned, you are still in court with the federal government. This is another issue that is in court. It still needs to be resolved.
As senators, this is our responsibility. Do you agree with me that we should deal with that and try to find a solution?
Mr. Mukash: Senator Watt, thank you for your comments. We are with you on the question of certainty. We all have the same questions that we have been raising for the last 30 years about extinguishment. We are hoping that some day someone will wake up and settle this.
We do not want to get too specific. The treaty is not our treaty. We have given the position of the Grand Council.
Mr. Mainville will answer your question on the environment.
Robert Mainville, Legal Advisor, Grand Council of the Crees (Eeyou Istchee): In terms of that litigation, it is currently before the Quebec Court of Appeal, so it is difficult for us to comment on it. There are interpretation problems with the James Bay and Northern Quebec Agreement and with treaties across Canada, which remains a major issue. We suspect it is inherent to the treaty-making process. All important major documents, including constitutional documents, are always subject to varying interpretations.
In the case of the James Bay Cree, we believe it is the role of the courts to resolve these issues. To date, we have been successful in resolving them in favour of the Aboriginal peoples, and we hope that will continue.
Senator Baker: I congratulate our witnesses for everything you have accomplished in the past. It is understood that you have led the way in our courts in defining areas such as fiduciary duty and Aboriginal rights, which you have argued particularly in the Federal Court and the Supreme Court.
It seems that most of the cases you have argued going back to about 1990 have related to matters on land. Under the agreement we are discussing, we move to the ocean.
I would like your sense of whether it will be easier or more difficult in the future to argue fiduciary duty in the case of the government or quasi-judicial boards that make determinations about Aboriginal rights. Will it be easier now after the decision in Sparrow and the fact that the Minister of Fisheries and Oceans and ministers of the Crown control what happens in the offshore? Will it make things clearer than the situation you faced in the past when you had to argue constantly for your rights before the National Energy Board, Hydro-Québec, the Quebec government and the Attorney General of Canada?
Looking at this agreement, do you envision that it will perhaps be easier to get your rights in future discussions or disagreements that arise out of this agreement?
Mr. Mainville: We believe so. The agreement before you is not an agreement concerning the Cree except for the joint area dealing with Cree land rights. The treaty we are negotiating with the Government of Canada has many similarities to the current agreement, and we believe that the long-term interests of the Cree Nation would be better served by a treaty than leaving the Aboriginal rights undefined in that territory.
We are negotiating a treaty now because we believe it will clarify in a substantive way the rights and interests of both the Government of Canada and the James Bay Cree in the offshore area. We find that is a beneficial thing both for the Aboriginal party and for the governments.
Senator Baker: The Grand Council of Crees had difficulty in the past in our courts in arguing decisions of quasi- judicial bodies. The Supreme Court of Canada came back to the James Bay and Northern Quebec Agreement and wished you to argue what was in that agreement.
Do you anticipate the same difficulty in matters that may arise in the offshore compared to what has arisen on land?
Mr. Mainville: That is a hypothetical question. I believe all modern treaties are complex documents. It is inherent in these that the parties will have disagreements over time in their interpretation and application. These disagreements are to be resolved in the court system. Signing treaties is not an end to disputes between Aboriginal peoples and government. The treaty provides a framework within which to work. Treaties usually provide for administrative boards and institutional framework in which Aboriginal people and governments can resolve their difficulties outside the judicial process. That is the advantage in the treaty-making process.
If you are asking whether there will be no litigation on these treaties in the future, I do not believe that is realistic.
Senator Baker: I am asking this question because you have an incredible amount of litigation experience surrounding these questions.
Since it was decided in Sparrow that Aboriginal rights extend to commercial fisheries beyond their immediate food needs, it should be easier for you under these agreements to ensure that whoever you are dealing with displays a fiduciary duty toward the people you represent and that the Aboriginal rights are protected.
Mr. Mainville: In the case of fisheries, we have not completed our negotiations with the government. As a rule, the proposition you make is correct. The question is how to apply fiduciary duty. When there is no framework in which to apply the fiduciary duty, it is difficult for officers of government to carry out their duties, taking into account Aboriginal interests. When the treaty is signed, we have a framework established. That usually leads to a better understanding of the fiduciary roles and responsibilities towards the Aboriginal peoples in the treaty area.
Senator Andreychuk: If I understand you correctly, court is a last resort. You anticipate resolving disputes or co- management of concepts within the agreement on areas that you foresee as being difficult. Is that correct?
Mr. Mainville: The objective of entering into a treaty is to try to find an institutional framework. That is usually accompanied by various boards and joint institutions to resolve issues through discussion and negotiations. These are complex documents, and it is certain that there may be honest disagreements between the parties as to what these documents mean in the long term.
Governments or Aboriginal groups will resort to courts in the future when they cannot resolve the issues through the treaty process. As a general rule, a treaty provides an institutional framework in which the parties try to avoid that kind of litigation and work out their differences in the institutional framework set out in the treaty.
Senator Merchant: I am aware of some of the difficulties you are having up there and the struggles you have had over time. When I was listening to you this morning, I heard many concerns about the application. You mentioned the trust issue. As well, litigation keeps coming up. This is the historical journey that First Nations people have lived through.
Chief, you said that if this agreement does not pass, this is an outcome that you will not accept. Could you elaborate a bit? What will you do? What would your next step be then?
Mr. Mukash: As I said in my comments, it has taken us 32 years to negotiate these claims with the federal government. If the bill does not pass, there is a question as to when we expect this to be resolved. It is important for our people to try to resolve these outstanding issues that relate to the 1975 James Bay and Northern Quebec Agreement. One of those areas is the offshore claims. We still have outstanding issues to resolve involving the inland claims, the areas of common interest of both Aboriginal groups, the Inuit and the Cree. Any delay, as I said earlier, will bring us there. It will be a big question as to when we expect this to be resolved. Not many people are involved in these negotiations. People are expecting an agreement to be reached very soon and, if that does not happen, we have to go back to our people to tell them that it has not happened yet. There is an expectation there to resolve these issues on our part. Would you like to add something under that, Chief Pachano?
Mr. Pachano: No.
Senator Joyal: Welcome. Nowhere is the Grand Council of the Crees mentioned in the bill. Your name is not there. If I understand the structure of the land claim agreement, which is a treaty according to section 3 of the bill, it deals only with the Inuit legally. There might be a subtlety there, but I want to understand your legal status in relation to the treaty.
In this agreement that you signed with the Inuit, on page 16, Schedule 28-1, the signatories to the agreement are Ted Moses and David Masty for the Grand Council of the Crees, and it was entered into on April 30, 2003, and of course for the Makivik Corporation, Pita Aatami and Johnny Peters. This agreement has a schedule to the treaty. These essentially are both of you as Aboriginal nations.
It seems to me that if there is an agreement between the two of you, we cannot entertain any doubt that there is any extinguishment of Aboriginal rights between the two of you. You remain totally in position to negotiate with the federal government the way you want to in relation to your Aboriginal rights and in relation to land claims settlement. Could you give a clear answer to that? I think it is a very important question.
Mr. Mainville: This is what we call an overlap agreement. One of the major problems faced in negotiating land claim agreements is the fact that many areas are used in common by different Aboriginal groups.
Senator Joyal: Of course. I understand that.
Mr. Mainville: This is one example. Contrary to many areas where Aboriginal groups have not successfully negotiated an overlap agreement, here the concerned Aboriginal groups sat down and ironed out an agreement as to how they intend to exercise both their Aboriginal and their treaty rights in the overlap area. This overlap agreement has been incorporated in the treaty.
The overlap agreement provides that both parties agree that when we sign the treaty, and eventually we hope to be able to sign it, the same agreement will be incorporated in that treaty, like the Inuit are incorporating the agreement in their treaty.
This agreement, if you wish, is recognized by government in the treaty. The government recognizes this agreement, incorporates it in the treaty, and to a certain extent the overlap agreement becomes part of the treaty.
From a legal perspective, regarding Bill C-11, the Cree are not affected, obviously, by any of the certainty provisions of the treaty. Specific provisions in the overlap agreement state that. We will deal with certainty in our own treaty. We will deal with government under current policy or whatever the policy will be at the time we sign. We do receive benefits, and the fact that we are not signing treaties simultaneously allows the Crees to benefit from the land rights that are set out in the overlap agreement.
If the Inuit treaty comes into effect, the Inuit will receive a large portion of the islands in the offshore area, and in the overlap area which we have agreed to with the Inuit, the ownership will be joint with the Crees. As soon as the Bill C-11 treaty, the Nunavik Inuit treaty, comes into effect, the land rights and landownership in the overlap area will be held jointly by the Grand Council of the Crees and Makivik Corporation or whatever organizations they designate.
Basically, we receive land rights under this treaty. We are not beneficiaries per se, but it has the effect of granting land rights to the Crees.
Senator Joyal: Then the only way you could be affected by this treaty between the Inuit and the government would be if there were a conflict of interpretation on the treaty between the Inuit and the government. Could the decision that might follow up an arbitration procedure or any other legal procedure affect you indirectly?
Mr. Mainville: Indirectly, yes. Theoretically, that could be possible.
Senator Joyal: You totally maintain your capacity to continue to negotiate with the federal government. As you said, you are still negotiating on the offshore area.
As I understand the map, you have offshore rights, potential rights, that are, to a point, different than the area covered by the map that we saw yesterday and that has been reproduced in the proposal of Makivik Corporation.
Mr. Mainville: The recognized Cree offshore area includes the whole overlap area, which is set out in the Inuit treaty, plus it extends downwards to James Bay, to the border of Ontario.
Senator Joyal: In other words, you are still negotiating with the government on that basis. Article 28.2 of the Nunavik Inuit Land Claims Agreement states:
Government shall not be bound by the Preamble or Part 8 of the Cree/Inuit Offshore Overlap Agreement nor shall the incorporation of the Cree/Inuit Offshore Overlap Agreement in this Agreement be construed as recognition by Government of aboriginal rights in the overlap area.
Mr. Mainville: That is because the Cree and the Inuit have mutually recognized in the overlap agreement their mutual Aboriginal interest and rights in that area. The Government of Canada, however, was hesitant to make that recognition formally. I cannot speak for the Government of Canada, but they recognized that there are sufficient Aboriginal rights in that area for the Inuit and Cree to enter into negotiations, yet for reasons that I still do not understand — and I would let them answer — they are not prepared to formally recognize those Aboriginal rights in this instrument.
Senator Joyal: Is it the same argument for why article 28.3 has been included? Article 28.3 states:
For greater certainty the definitions in Part 3 of the Cree/Inuit Offshore Overlap Agreement shall apply only to the Cree/Inuit Offshore Overlapping Interests Area.
Mr. Mainville: I believe that is more a technical issue, because we have definitions in our overlap agreement that may not be identical to the definitions set out in the treaty. Therefore, for technical purposes and to avoid ambiguity, it was agreed that there would be a specific set of defined terms in the overlap agreement that would not necessarily be the same as the subset of the defined terms in the treaty.
Senator Joyal: In other words, if you sign an agreement with the government to settle your issue on offshore rights, those definitions that we see here might be of a different nature?
Mr. Mainville: They will be different, possibly, in our own treaty, but not in the overlap agreement. The provisions of article 28 of the Nunavik Inuit Land Claims Agreement and the provisions of the agreement on the overlap, we have agreed with government and with the Inuit, that these identical terms, absolutely word for word, will be incorporated in the Cree treaty when it is concluded.
Senator Adams: Thank you for coming. Now you have a little more clout than in 1975. At that time we did not have any offshore. I am not sure if you have some islands now or not. This is an agreement for hunting and fishing rights done offshore that you did not have before.
Sometimes you do some trapping in the area. When we lived there, we mostly had white foxes, nothing coming down the tree line. I was wondering if your people now have more power for offshore trapping.
My second question is about the overlap agreement. We had someone from the department yesterday talking about royalties with mining and oil. Do you have an agreement so you can negotiate royalty percentages in the future with oil and mining?
Mr. Mukash: On the offshore issue, the Crees have always historically hunted on the offshore, and so have the Inuit. Lately, we have the migration of caribou and the absence of caribou in our territory. We used to go all the way to Lake Minto. We also went over there in the summertime to hunt caribou. We do not hunt other animals, such as fox. On the southern part, into the James Bay area, the Inuit do go there to hunt the beluga.
Historically, we did not sign treaties. It was understood that people had the right to go anywhere. These days, it is a little different. We have a treaty here that we have to fulfill all the requirements of. There are still outstanding issues.
I am not sure it makes any difference. Of course, it makes a difference in that there is an increase in the number of hunters who go to the North and also in the Inuit who come towards Cape Jones and beyond. That is why it was important to reach an agreement on the overlap, on the offshore area.
I will ask Mr. Mainville to comment on the agreement itself.
Mr. Mainville: On the issue of the royalty, in the overlap area the royalties will be shared equally between the Cree and the Inuit. Whatever royalties or benefits the Crees receive, they will share it with the Inuit; and likewise, whatever the Inuit receive in that area will be shared equally between both groups.
It is important to point out that if the bill does not pass, it could put into jeopardy the overlap agreement we have. It could also put into question our own negotiations for a new agreement. That is why we are preoccupied with the situation.
The Chair: I would like to thank all three of you very much indeed. It has been a very helpful and informative session. Obviously we could have kept you here for eight hours asking questions, but that is parliamentary life. We are extremely grateful to you for coming.
I will now ask Mr. William Mackay from the Government of Nunavut to join us at the table. Welcome. I believe you have an opening statement.
William Mackay, Senior Legal Advisor, Department of Executive and Intergovernmental Affairs, Government of Nunavut: I am appearing on behalf of the Government of Nunavut in response to an invitation from this committee that was issued to our premier, Paul Okalik. Premier Okalik sends his regrets, but I have come to speak on behalf of the Government of Nunavut in favour of this treaty.
I served as the negotiator and counsel to the Government of Nunavut during part of the negotiation of this treaty. Additionally, I served as the Government of Nunavut representative on the ratification committee and participated in the ratification tour of Nunavik prior to the ratification vote.
I share Premier Okalik's and the Government of Nunavut's belief, and I strongly recommend that the Senate support the passage of this bill and the ratification of the agreement.
Senator Watt has raised a number of important points and has requested that this committee study the agreement and the act in more detail. For that, the Government of Nunavut is grateful.
One of the senators yesterday said, with reference to treaty making, that perfection is the enemy of the good. This treaty is by no means perfect, but it is good. It is good for the Government of Nunavut, the Government of Canada, and, as evidenced by the results of the ratification vote, it is good for the Inuit of Nunavik.
The Government of Nunavut, for its part, welcomes the certainty with respect to Nunavik Inuit rights in Nunavut territory brought by ratification of this treaty. As Senator Sibbeston said yesterday, this agreement clarifies the rights and obligations of government and Inuit in the Nunavik Marine Region. It defines how resources should be managed in this part of Canada, which is so important to Inuit. It does not take away any Aboriginal rights, and all Aboriginal rights, both treaty and non-treaty, held by Inuit continue to be protected by section 35 of the Constitution, whether or not this agreement is ratified.
Additionally, this agreement does not give the Government of Nunavut any new jurisdiction. The Government of Nunavut has jurisdiction in this area now and it will after the agreement is ratified or if the agreement is not ratified. The Government of Nunavut's jurisdiction in this region comes from the Nunavut Act, a federal act, and it has the same jurisdiction that the Government of the Northwest Territories had in that area before.
The role of the Government of Nunavut actually will be diminished by the ratification of this treaty. The role of the Government of Nunavut in its wildlife jurisdiction, for example, will be shared between the Government of Canada and the Nunavik Inuit and the Cree, eventually.
Honourable Senators, this agreement is about the future. The Government of Nunavut looks forward to participating in the future implementation of this agreement in partnership with Canada and the Nunavik Inuit.
In particular, the Government of Nunavut looks forward to managing resources with Nunavik Inuit and Canada through the management boards that will be established through this agreement, including the wildlife board, land use planning commission, and impact review board.
Just as an aside, the government is familiar with how such boards work since these were modeled after the boards that were established under the Nunavut agreement, and which the Government of Nunavut has been participating in since 1999, and then before that, as the Government of Northwest Territories. There is some expertise that we can share with the Nunavik Inuit in establishing these boards, and the Government of Nunavut looks forward to that as well.
For these reasons, honourable senators, as well as the considerable benefits accruing to the Nunavik Inuit in this treaty, we would urge the Senate to pass Bill C-11 so that Canada can ratify the Nunavik Inuit Land Claims Agreement.
Senator St. Germain: Thank you for appearing before us on behalf of Nunavut.
In spite of the fact that it diminishes to a degree rights and access, is it the certainty that this agreement brings that will assist the people of Nunavut as well as the people of Nunavik?
Mr. MacKay: For both governments, the certainty is obviously one of the main reasons for entering into a treaty. Under this agreement, as you state, the rights of government and Inuit will be clarified under the treaty, and we can just look at the treaty and find out what our obligations are in the Nunavik Marine Region.
Senator Watt: I will try to restrict myself to three sets of instruments contemplated in the agreement itself. One is the wildlife management board that takes into account Nunavik, Nunavut and the Cree, as Senator Adams said, later, along with the review board and the land and resource board, I believe.
I examined the agreement, knowing that Premier Okalik has been making the point that we also have to be useful, trying to help him out in terms of getting access to what is adjacent to him in terms of the powers and what is not.
I do not see this as a real balance. Again, I stated earlier this morning that it is due to the jurisdiction maintaining the federal government, because the Nunavut government is an extension of the federal government. On that account, there is no change, as you stated. They already have jurisdiction at this point.
Do you not feel that there might be — or will be — some hardship over time? There already is today. When it comes down to the management of matters, what is adjacent to Nunavik Inuit is at their doorsteps, the islands at the high water marks. The jurisdiction is under the federal government.
Being regulated and the various sets of laws that will be passed could have some consequences on the rights of the Inuit.
Mr. MacKay: Senator, that is correct. The Government of Nunavut has jurisdiction in that area, and the Nunavut legislature could pass laws that affect Nunavik Inuit. That is the situation today.
Once this agreement is ratified, you will have a wildlife management board in place that will have members. You pointed out that it is equal members from government and Nunavik Inuit, with the chair chosen jointly. Under that scenario, there is actually more input from Nunavik Inuit into wildlife management than there is today. Under today's situation it is the Government of Nunavut that has jurisdiction over wildlife in the area, and it has sole jurisdiction.
Senator Watt: This is what is in the summary, the way you have described it, but in the text itself, Nunavik Inuit do not have equal numbers. I just wanted to remind you of that. On top of that, Nunavik Inuit will be able to implement what has been passed. They will have recommendatory functions up to the minister's level. Nunavut and the federal laws apply. We are, in a sense, outnumbered. I just wanted to state that.
Why were the Nunavik Inuit not notified by the Nunavut Wildlife Management Board when they put a closure recently in Sleeper Islands and the King George Islands, which is a doorstep away from several communities? Do you have any knowledge of that?
Mr. MacKay: Senator, I am aware of the beluga harvesting season being cut short by the Department of Fisheries and Oceans. As you know, that is a department of the federal government, so the Government of Nunavut did not participate in that. As you said in your speech, the Nunavut Wildlife Management Board did approve that measure, so in a sense the Government of Nunavut was involved. The board acts on the information given to it by government, and it is the federal government in that case that had the obligation to consult. My information is that they did consult with Nunavik Inuit, but I do not work for the Department of Fisheries and Oceans, so I do not know the details of the consultation.
Senator Joyal: If I understand the scope of the agreement or the treaty, because it is a treaty according to the bill that we have before us, does the Nunavut government expect some financial benefit from this agreement?
Mr. MacKay: The Government of Nunavut is part of the implementation panel. The implementation panel gives implementation funding to bodies that are charged with implementing the agreement. That will be federal departments as well as the Government of Nunavut and agencies of Makivik.
We have negotiated an implementation plan that sets out yearly funds that will go to the Government of Nunavut. For the Government of Nunavut, that is $350,000 per year for the first initial ten-year period. That will go to covering the additional cost to the Government of Nunavut of implementing the treaty. It is intended to recognize the difference in costs of running the government with or without the treaty. Once the treaty has been ratified, the Government of Nunavut will receive that $350,000 a year.
Senator Joyal: You will receive an additional amount of money from the federal government to be able to discharge the additional responsibility that you are granted under the agreement.
Mr. MacKay: That is correct, senator.
Senator Joyal: Does it widen the economic base on which you can raise revenues generally?
Mr. Mackay: No. It is intended just to cover the costs of the agreement. It is not intended to be a sort of additional funding for the Government of Nunavut to cover its general obligations such as health or social services or education. It is intended strictly to allow the Nunavut government to implement the agreement.
Senator Joyal: In other words, if there were to be royalties paid or any other benefit that would accrue to the Inuit, that in no way, shape or form could represent for you an additional source of income in the way of levies or indirect taxes or charges you may think of?
Mr. Mackay: No, there would not be any additional income for Nunavut. At present, the Government of Nunavut does not have jurisdiction over natural resources, so we do not collect any royalties. If one day we are a government that collects royalties, because of this agreement, some of the royalties, as explained before, would go to Nunavik Inuit. If anything, the Government of Nunavut is reducing its potential revenue base by entering into this agreement, but the reason for it is to increase the economic stability of the Nunavik Inuit, who are of course neighbours and share many of the harvesting areas of the Nunavut Inuit. It is in the Government of Nunavut's interest to have that revenue source for the Nunavik Inuit.
Senator Joyal: At present, do you have any specific jurisdiction in the matter of natural resources?
Mr. Mackay: No.
Senator Joyal: If there would be any development of natural resources other than fishing and hunting, would you have to request that the federal government amend your enabling legislation to grant you specific responsibility in that regard?
Mr. Mackay: That is right.
Senator Joyal: Regarding the split of royalties, we were told yesterday by Mr. Molloy that the $2 million is being shared equally and that the 5 per cent over and above that is on the basis of the agreement that was followed in the Nunavut context. How does it work in your own reality?
Mr. Mackay: It works almost the same way. Under the Nunavut Land Claims Agreement there is a provision on Crown lands. If there is development of resources on Crown lands, then the Nunavut Inuit receive a portion of the royalties in the formula you just mentioned: 50 per cent of the first $2 million and then 5 per cent of everything above that.
If the development of resources is on Inuit-owned lands — and I think almost 20 per cent of Nunavut is Inuit-owned lands — then the Inuit set and collect all the royalties and retain them for Inuit organizations. The situation in this agreement is similar, except that 80 per cent of the lands are owned by the Nunavik Inuit in this case, so there is more of a potential for a share in the royalties, if there are any.
Senator Joyal: Why did you not have an escalation clause in your discussion prior to that? It seems to me that that would be one way of managing the future.
Mr. Mackay: I do not know what the reason was for freezing it at $2 million in the Nunavut context. In this agreement, we wanted equal treatment between the two Inuit groups, so we retained that $2-million figure that was set at the 1993 level.
My understanding is that in most cases that first $2 million is reached fairly quickly so it does not become an issue. The 5 per cent is actually the more pertinent figure.
Senator Joyal: I hope you can enlighten me regarding the definition of ``resource royalty,'' which appears in the definition section of the agreement on the bottom of page 6:
`resource royalty' means any share of production whether in money or in kind paid or payable to Government, as owner prior to production, in respect of a resource produced by a person from Crown lands in or under the Nunavik Marine Region, but does not include . . .
Why does it say ``as owner prior to production''?
Mr. Mackay: The Crown owns all resources when they are in the ground, but once they have been produced, the producer owns the resources then. The government collects a royalty based on its ownership of the resources, but that was in there to clarify that it is the owner of resources in the ground as opposed to resources en route to somewhere. I believe that came out of a dispute in the Northwest Territories context. I will let the federal government address that point more specifically, since they were the ones involved in redrafting this provision to read ``as owner prior to production.''
Senator Joyal: If there were any dispute between the Nunavut government and the Nunavik Inuit, what would be the dispute settlement mechanism in the context of this agreement?
Mr. Mackay: Between the two Inuit groups, in the Nunavut Land Claims Agreement there is an overlap agreement similar to this one with the Cree. If there was a dispute in that context, it would go to that section of the Nunavut Land Claims Agreement, and it would be decided through the dispute resolution provisions in that agreement. They have an arbitration provision there as well.
Senator Joyal: Are there any situations of conflict from the past that could arise again from this agreement in the near future?
Mr. Mackay: Not to my knowledge. There have been conflicts, of course, between Inuit and government on both the Nunavik side and the Nunavut side. However, I do not think there have been any disputes between the two Aboriginal groups since the 1993 agreement was signed.
Senator Adams: With respect to the land claims, somehow we have quotas in 0A and 0B. With the overlap agreement, I think this would be better for the Cree and Inuit in Nunavik and Nunavut. It may be different in a land claims agreement where there are corporations such as Makivik involved. They do not have a legislative body, whereas in Nunavut we have such a body. There is more control over mammals under the agreements because we have the legislation. The government does not recognize that. People are concerned that Nunavut will be administering resources. We still have to go to the federal government concerning mammals, for example. I want to know what the difference is between managing the land claims agreements amongst the different parties.
Mr. Mackay: Do you mean what is the difference between the two agreements in terms of wildlife management?
Senator Adams: The whole agreement. Let us say we have a premier and then there is the president of Makivik. Every year we come up with different legislation. I am concerned about Nunavut giving up rights to water where there might be an overlap in an agreement.
Mr. Mackay: Makivik, as you point out, is the corporation that signed this agreement. The Nunavut agreement was signed by Nunavut Tunngavik. The Government of Nunavut is the territorial government that is responsible for implementing both agreements. Both agreements are wholly within the territory of Nunavut. That is how that works.
As you mentioned, the role of federal government with respect to wildlife is to administer the sea-based wildlife, and the Government of Nunavut has jurisdiction over the land-based wildlife. I do not know if that fully answers your question.
Senator Adams: I think so. We have a land claim agreement in Nunavut, especially Nunavut Tunngavik Incorporated, that includes some of the islands that protect mammals, going right up to James Bay and covering some of the islands. Those are not controlled by Nunavut because it takes money to operate that area. It is an area for protecting the future of the birds and mammals. It is more like a park environment.
The land claims agreements have some overlap. I think in the future it will be easier to negotiate commercial interests. We heard yesterday that Nunavut commercial fishing had been worked on for five years. At that time the Nunavut had land claims for about 6,000 metric tonnes of the Greenland turbot. It used to be about 2.5 per cent and it has gone up to 10 per cent. If the bill passes, I think it is easier now, because we would have an overlap agreement.
Mr. Mackay: I think you are right, senator. Both Inuit groups get rights in this agreement with regards to commercial fishing. It goes a long way to recognizing rights to commercial fishery for both Inuit groups.
The Chair: Thank you very much, Mr. Mackay. We are extremely grateful to you for clean-language answers, which in legal matters are not always the case.
We will now ask the officials who were with us last night to return to the table. They are, from Indian and Northern Affairs Canada, 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.
Thank you for agreeing to make yourselves available again this morning. Even though that had not been scheduled, it is an indication of how much the committee valued your input yesterday. I will pick up where we left off last night, which means going first to Senator Joyal and then to Senator Watt and carrying on from there.
Senator Joyal: Welcome back. I would like to go back to page 13 of the parliamentary secretary's statement of yesterday. I will read the paragraph about which I request additional explanation:
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.
Could you explain to me the legal impact and nature of this backup release clause and identify in the text of the agreement to which section that refers specifically, so that we have the legal wording in front of us?
Brian Keogh, Senior Counsel, Department of Justice Canada, Indian and Northern Affairs Canada: Senator Joyal, the provisions in question are in part 2.29, the certainty provisions of the agreement.
Senator Joyal: What page are you on?
Mr. Keogh: I am on page 11. The specific provision is 2.29.4. It is our hope that this backup release will never have to be triggered because we are assuming and hoping that the upfront undertaking not to exercise rights will be sufficient and that the courts will give effect to that upfront undertaking, that promise, not to exercise any rights but those set out in the agreement.
The purpose of this particular provision is that if this upfront promise not to assert is not given effect by the courts, then there will be deemed to have been a release of those rights as of the date of the agreement, to the extent necessary to avoid prejudicing the rights of Canada, third parties or Inuit.
Senator Joyal: Could you provide an example so that we have a better illustration of this?
Mr. Keogh: I hope I can repeat the example I provided yesterday, because it is probably the clearest example of a potential exercise outside of the agreement. The agreement provides to the Inuit fee simple in approximately 80 per cent of the land surface in the Nunavik Marine Region. Approximately 20 per cent is reserved to the Crown for various purposes.
If for some reason an individual Inuk claimed that he or she had an Aboriginal right to that 20 per cent and that the Crown could therefore not use the lands in the way that the Crown wanted to, that would be an attempt to exercise a right outside of the agreement. The effect of the backup release then would be to surrender the Aboriginal right or title to that 20 per cent of the lands, to the extent necessary to allow the Crown to go about its business and use those lands in the way it intended.
Senator Joyal: I am trying to understand the particular context under which such a claim could be made. Suppose there are submarine resources found. Since 80 per cent of the land belongs to the Inuit, according to this agreement, they would be the ones to decide if the exploitation of that resource would take place. How could they oppose the government's decision, for example, to exploit those resources and claim the royalties on it?
Mr. Keogh: First, the Inuit do not own the marine area subsurface. The 80 per cent is on the islands.
Senator Joyal: I am talking about the islands.
Mr. Keogh: This would apply on the 20 per cent.
Senator Joyal: I just want to say that sometimes an island is a very important place. You are aware of the conflict between Canada and Denmark. It is a very small island. It is very symbolic, yet a strategic place to own.
Mr. Keogh: I do not mean to put down the importance of the island. That is why the Inuit ended up with 80 per cent, because it is so important to them.
This provision operates to protect government on the 20 per cent of the islands it owns. It would also protect the Inuit on their 80 per cent. For example, with fee simple title they will have the ability to use those lands in any way they want because of the nature of fee simple. If a particular Inuk then said, ``We have Aboriginal rights to that land, and Aboriginal title means that you cannot use the land in a manner that is inconsistent with the original use, which is what we understood from the Delgamuukw decision,'' then the Inuit collectivity can say, ``No, we are entitled to use those lands however we want, and there are no restrictions. To the extent that title prevents us from using those lands as we wish, that title has been released to the extent necessary to allow us to proceed.''
The intent of that provision is to protect Inuit, government and third parties so that they can act in a way that the title or rights that cannot be asserted will not have a legal impact on their abilities.
Senator Joyal: Your legal definition of non-assertion means that the basis of the rights still exists, but there is a convention between parties that they will not exercise their rights.
Mr. Keogh: That is correct.
Senator Joyal: I will provide you an example from common law. If I own land that my neighbour walks on all the time, as you know, there is prescription, and after a while my neighbour can claim that he has the right to use that passage to obtain whatever objective he may have. However, we can agree that he will use that land for as long as he wants, but in no way, shape or form is the fact that he uses that land acquisitive of rights to it.
Does this analogy of legal reality have a comparable value to what you are telling us today?
Mr. Keogh: I would have to consider all of the various implications of a right to use. We are dealing with more significant rights in this case, with Aboriginal rights, with Aboriginal title possibly and with fee simple. I am a bit reluctant to say that in all cases it is exactly the same.
Senator Joyal: I am suggesting an analogy.
Mr. Keogh: By analogy, what is happening here is that the Inuit have a right that they retain. They are saying that to the extent that that right is outside the agreement, it will have no legal effect. In a sense, it is a waiver of the ability to rely on that right.
Senator Joyal: How will a court interpret that in terms of extinguishment versus non-extinguishment of Aboriginal rights?
Mr. Keogh: We are doing our best to avoid that being interpreted as an extinguishment. I cannot predict how the courts will interpret it. I am hoping they will interpret it in the fairly plain way that we have set it out, that the right will continue to exist and the Inuit agree they will not assert it.
Senator Joyal: It is avoiding use of the word ``release'' and the other two words you mentioned yesterday, ``cede'' and ``surrender.'' By not using those words and by recognizing that the Inuit commit themselves not to assert those rights, there is an implication that the rights still exist.
Mr. Keogh: That is correct.
Senator Joyal: If I was Inuit, is that what I would plead in court, to claim that my rights have not been extinguished?
Mr. Keogh: That would be the starting point of any attempt to claim a right outside the agreement. However, we have the backup release to try to counter anyone attempting to make that claim.
Senator Joyal: Given that there is no review mechanism of the treaty after a certain period of time and that the treaty is open-ended, in your opinion, is there recognition that the agreement is everlasting and would not be the object of reopening in court on the basis of pre-existence of rights?
Mr. Keogh: That is correct. We would not expect the treaty to be reopened unilaterally by any party. There are amendment provisions, and if it makes sense for the parties to make changes to the agreement because of changing circumstances, there is always an ability to do that. There are very specific amendment provisions provided, but we would not expect the treaty to be reopened by any one party unilaterally.
Senator Joyal: Can you explain the scope of the amendments procedure?
Mr. Keogh: Yes. The amendment procedure does not require the same level of ratification as the original agreement.
Senator Joyal: Could you identify what section you are referring to?
Mr. Keogh: It appears on page 9, article 2.13.
Senator Joyal: Could you read it out loud?
Mr. Keogh: Article 2.13 states:
Amendments to this Agreement shall require the consent of the parties as evidenced by:
(a) in respect of Her Majesty, an order of the Governor-in-Council, and
(b) in respect of Nunavik Inuit, a resolution of Makivik, except as provided otherwise by its by-laws.
Senator Joyal: In relation to this capacity to amend the treaty, can everything be amended? Or are there provisions in the treaty that are more fundamental than others and are seen as a final settlement?
Mr. Keogh: I believe that any part of this treaty that the parties wish to amend is open to amendment.
Senator Joyal: In other words, no part of the treaty is a final settlement of any claim that the Inuit might have in the region as outlined?
Mr. Keogh: It is a final settlement in a sense that it requires all-party consent to any kind of change. That is where we maintain our certainty. It is not intended to be a closed box in a sense that the parties cannot consider any provision if it makes sense for them to do that.
Tom Molloy, Chief Federal Negotiator, Indian and Northern Affairs Canada: I want to clarify that it has been the position of the Government of Canada in these negotiations and in others that, while the amendment provisions are there, we do not see them as being there to change what we would consider to be the fundamental aspects of the treaty — that is, matters dealing with the quantum of land, the cash transfer and other such items. We have never indicated to any of the parties at the table at any time that we would be willing to entertain amendments of that nature.
The amending provisions are there for when a provision is not working the way the parties intended. Over time, there are changes in the ways governments conduct their affairs, and some things may need to be amended to make the treaty work.
Senator Joyal: I understood that from your discussion today. As I say, let us project ourselves 50 years down the road when we will be, as the French expression states, in a better world or in a worse world. If circumstances that we cannot foresee today were to present themselves in the future, would any clause in this agreement limit the amendments legally, outside the intention that you have expressed to us this morning? This agreement will have the nature of the treaty, according to the bill. That is important, because it gives a legal nature to an agreement that is different than if Senator Milne and I entered into an agreement to exploit a joint piece of land; that is at a much different level than this agreement.
Mr. Molloy: No, there are none.
Senator Joyal: Any court or legal authority that might have to interpret that agreement treaty in the future would certainly take into account the intention of the parties. You have expressed an intention this morning, but the text of the treaty, per se, would not provide for any legal limitation.
Mr. Molloy: That is correct.
Senator Watt: I will reduce the points I wanted to raise. Yesterday I was trying to get some answers to the issues that you presented about interpretation of the agreement and Senator Joyal's questions and to what extent the words ``cede,'' ``release'' and ``surrender'' really apply. As I mentioned yesterday, when I was listening to the presentations that were made during the community consultations, they certainly did not get into the nitty gritty of the legal ramifications of this agreement.
Nevertheless, I will ask questions along the same lines as Senator Joyal regarding the islands, something that you can actually touch and identify. Let me take the same scenario to customary practice.
The livelihood of the Inuit is based on subsistence. That is their economy and their social activities. At times, governments pass laws about their authorities and activities. At times, governments pass laws hindering the daily life of the people. The fact is, a number of people have been charged because of not complying with the law. I will use the beluga as an example, although this could apply to any species.
What does that mean? Does that mean that we will not be able to use our Aboriginal rights, per se, and defend ourselves in court if an Inuit person is charged for trying to meet the needs of their family and feed their family because there is no other means or way to feed them? How does that fit in this agreement?
Mr. Molloy: It is my understanding that most of the court cases regarding enforcement of wildlife regulations and fishing regulations result because there is a dispute between the Aboriginal right and the ability of government to infringe that right and to be able to pass laws that affect it. That is a result of the uncertainty about what Aboriginal rights are, where do they exist and how can they be exercised.
From Canada's perspective, the major purpose of treaty negotiations is to provide certainty in areas of Canada where there have been no treaties and where Aboriginal, First Nations and Inuit people assert that they have an Aboriginal right and title. Through the negotiations, we seek to remove the uncertainty of the Aboriginal rights and title and to develop a system and a scheme whereby everyone understands how those rights can be exercised in a particular area.
The treaty we are dealing with today sets out how the rights will be exercised in the Nunavik area, and it protects the ability of the Inuit to be able to continue to harvest. It provides restrictions on the ability of the government to limit that right through matters of conservation, public health and public safety. Those are the three overriding conditions in which the right to hunt and fish can be constrained by this agreement.
The right to hunt and fish is protected by the treaty subject to the three considerations of conservation, public health and public safety, and then there is a management regime put in place, which involves representatives of Nunavik, Nunavut and the Government of Canada that come together as an independent public board to administer the conduct of the hunting and the fishing and the regulations.
The whole purpose is to try —
Senator Watt: Is he taking up my time answering that?
Mr. Molloy: — to remove the uncertainty that presently exists.
Senator Watt: I think I do understand the drift of this agreement. This is why I felt it was an important resource. You just mentioned conservation, preservation and the ability of government to make laws on the basis of information brought to them by scientific communities. It is the government's prerogative to move in and restrict whomever they need to restrict, and I know all that.
As I mentioned the other day, I find that in the agreement the right to subsistence is not considered to be one of the priorities related to right to life. We already have people at this point being charged. They will be tried. This is what worries me. It is only for beluga now, but what about tomorrow? This is my concern. Our lifestyles in the North for many years have been very free to do what we think is best for us in order to maintain ourselves, have economy, right to life, right to govern ourselves and things like that.
The South is intruding into our life. I am not sure this was looked at closely enough. You are not differentiating in this agreement here. There seems to be more emphasis on ability for commercial, but what about the subsistence needs of the people, which have nothing to do with the commercial?
That is the most important issue to the people in Nunavik, despite what was said yesterday by our representative that the people have fully approved this agreement. The people said to me, ``Hey, what are they doing with our lives? That was never explained to us.''
What you just explained to Senator Joyal and to me about those things has never been explained to the Inuit. That is why I raise these issues.
Mr. Molloy: I would suggest that the agreement, in particular the wildlife chapter, spends far more time dealing with the rights of Inuit for subsistence than it does for commercial. There are only several clauses in the agreement that deal with the commercial aspect. The whole foundation of the chapter on harvesting sets out the principles under the objectives of the wildlife management system. It sets out the objectives of the chapter to define and protect Nunavik Inuit harvesting rights. It is governed by and implements the principles of conservation. It reflects levels, patterns and character of Nunavik Inuit harvesting. It promotes the long-term economic, social and cultural interests of the Nunavik Inuit. It provides for harvesting and access by persons other than the Nunavik Inuit. It recognizes the value of Nunavik Inuit approaches to wildlife management and Inuit knowledge of wildlife and wildlife habitat and integrates those approaches with knowledge gained through scientific research. It integrates the management of all wildlife species and wildlife habitat within a comprehensive management system. It provides for public participation and promotes public confidence in wildlife management, particularly among Nunavik Inuit. It establishes the wildlife management board to make decisions and for effective coordination with other institutions responsible for the management of wildlife migrating between the Nunavik Marine Region and other areas.
Those are the objectives that we set out in the chapter. We believe that, as a result of the negotiations, we have met those objectives.
There is also a set of principles against which the chapter will be interpreted. It recognizes that Nunavik Inuit have traditionally used and occupied the region and continue to do so. It recognizes that Nunavik Inuit traditional use and occupancy flows from legal interests with respect to wildlife, which Nunavik Inuit enjoy throughout the Nunavik Marine Region; and that Nunavik Inuit are traditional and current users of wildlife and other resources and have developed particular knowledge and understanding of the region and the resources.
The Inuit population is steadily increasing. It recognizes a principle for a long-term —
The Chair: Mr. Molloy, in the interests of time, you are reading —
Mr. Molloy: I am just trying to point out —
The Chair: I understand that you are trying to respond with specifics. You are reading from a document, but perhaps you could give us the document as a reference, and we can get back to questions.
Mr. Molloy: What I should do is take everyone through the entire wildlife management agreement, section by section, which would take forever. I am trying to set out the principles and the objectives that the parties negotiated prior to negotiating the wildlife management agreement. We believe that they reflect those principles and objectives.
The Chair: Thank you.
Senator Watt: Mr. Molloy, I have gone through all of that, and I ask you: Where does it end? Where does the buck stop? It stops at the three instruments contemplated in the agreement: regulatory bodies with the ability to make recommendations to the minister and through the minister to Parliament. Some of it also goes to the Nunavut government. We are not there to protect our interests. At the same time, our rights and interests will be dealt with by outsiders, especially in the area of subsistence requirement. Again, subsistence requirement is extremely important. In the James Bay and Northern Quebec Agreement, that is the most important thing. That agreement differentiates between the commercial and the sport fishing and how it is resolved over time.
We do not even have a mechanism to deal with the grievances to reconcile the differences between traditional knowledge and scientific knowledge. That is why I raise those points.
The Chair: Did you wish to respond?
Mr. Molloy: I want to say that article 5.3.1 of the agreement says that Nunavik Inuit shall have the right to harvest that species, stock or population ``up to the full level of his or her economic, social, and cultural needs.'' Your concern is recognized in the agreement.
Senator Watt: I am aware of that, but it goes on and on. They are nice words but they do not appear after.
The Chair: We seem to have a well-established disagreement in which both perspectives have been quite fully aired.
Senator Andreychuk: I have not heard anyone say that those who were negotiating with the federal government did not have the authority or the capacity. In other words, they were the legitimate negotiators on behalf of the Makivik Corporation, as I understand.
It has been raised that once the negotiators concluded and gave it to their authorities to move on to the ratification process, there was some question as to whether some people fully understood the consequences of it. It is most unusual to question that, because the federal government negotiates often on behalf of Canadians. I am sure we are not aware of all the nuances of the agreements.
The ratification process would be selected by the corporation, but would it be in consultation with the federal government? Did the federal government satisfy itself that it was a ratification process that would fit known concepts for ratification?
Allow me to step back and say that we often look at free and fair processes in democracy for elections and many decision-making processes. These are often looked at by Canadians. I want to know whether the ratification that the corporation undertook would fit that broad spectrum. Within our electoral system, if we do not like the outcome of an election process, we cannot question it, but we can question the process and the procedure and indicate whether it was followed.
From your perspective, what was the procedure, and has it ever been questioned as opposed to someone simply not liking the outcome? You might not like which party wins in Canada and you might not like what your government does thereafter, but you accept it if the election process was followed, because you have recourse if the process was not followed.
I want to be assured that a ratification process was put in place and that it was followed. To your knowledge, has anyone questioned the process on a technical, administrative basis rather than on the outcome?
Mr. Molloy: First, I will make it very clear that it was not a Makivik ratification process. Article 25.5 of the agreement provides that upon initialling the agreement, the parties — meaning Canada, the Inuit and the Government of Nunavut — would establish a ratification committee to oversee the conduct of the vote. Representatives of each of the parties were put on a committee and charged with the responsibility for conducting the vote.
As Mr. Mackay mentioned this morning, he was the representative for the Government of Nunavut. After the vote was conducted, they are required to maintain the documents; and any of the parties has a right to call for an inspection. No complaints were made regarding the conduct of the vote.
Senator Milne: I have a couple of practical questions. Were the Quebec Inuit, the Naskapi, consulted during this process at all?
Mr. Molloy: No, they were not, because they make no assertion into the offshore areas.
Senator Milne: Into the marine areas. Really? They are a land-based rather than a water-based society.
Mr. Molloy: That is my understanding.
Pat Walsh, Senior Negotiator, Makivik/Cree Offshore of Quebec: When the legislation was introduced into the House, they did inquire about it and we provided them information. They were satisfied and had no comment.
Senator Milne: I have not heard any explanation of how this 80-20 split will happen on the offshore islands. Will 20 per cent of each island be held in the name of the federal government; or will 20 per cent of the islands be held? How will this be decided?
Mr. Molloy: We negotiated the quantum first, and then once that was agreed to, we negotiated the specific location of the Inuit 80 per cent and the government 20 per cent. It is identified on maps and so forth.
Senator Milne: Yes, that is true, but I do not see the maps. Just give me a verbal idea of whether islands are split or whether it is groups of islands or what.
Mr. Walsh: For the most part, the islands would be owned entirely by the Nunavik Inuit. There are certain islands that Canada did retain; and there are a few islands in which, for instance, there would be a particular bird colony that we wanted to protect, so we would take that cliff area around it.
For the most part, entire islands are designated for one group. There are a few exceptions, and they usually revolve around protection of a particular wildlife or nesting area.
Senator Milne: Does the split revolve at all around what you think might be future natural resources in the area?
Mr. Walsh: As far as I am aware, there were not any recommendations along those lines. Basically, we canvassed departments for their specific interests. However, as I say, the interests are usually in terms of establishment of parks or reserve areas. I feel relatively comfortable saying that no decisions were made on the basis of potential development of mineral resources.
Senator St. Germain: This morning Mr. Mackay used a quote, which I have used as well: You should never let perfection become the enemy of the good.
From your experience, Mr. Molloy, is there anything that varies greatly in this agreement that is not in the other agreements that you have negotiated or in agreements that have been negotiated by other negotiators like yourself?
I hear what Senator Watt is saying and I am respectful of that. I believe you have answered his question as to subsistence. Is there anything in this agreement that could jump out at us if we were to accept it in its present state, based on the history of other agreements?
Mr. Molloy: Well, something could jump out of existing agreements that no one contemplated. As was said this morning, this agreement has a lot of similarities with — but is not totally similar to — the Nunavut Land Claims Agreement, which came into effect in the mid-1990s. The management structures tend to reflect that.
The big difference is in the area of certainty. There is a different approach to certainty here than there was in the Nunavut agreement. The Nunavut agreement in the mid-1990s still had the requirement for cede, release and surrender. This treaty does not.
It has come as a result of negotiations with Makivik and other groups in Canada. We have tried to find a technique that provides the government with the same type of certainty that the other provisions gave but maintained the rights of the claimant group.
Senator St. Germain: I think everyone who is affected is in favour of this, and this is a communal situation. We could go on discussing this ad infinitum, but I think these people want to get on with their lives.
I go back to the Tlicho agreement. Most of the senators at this table were in the House or in the Senate when we made that decision, where I got in trouble with my side for asking for immediate passage of the bill as opposed to at the next sitting of the Senate. I did get blasted by my side for having asked Senator Sibbeston to proceed immediately to third and final reading and Royal Assent on that particular day.
That was with the former government. I know you may figure this is partisan, but it is not; we need to get on with this. Whether we will ever fulfill everybody's needs, I do not think you can.
I am not in any way undermining or trying to take away from Senator Watt's concerns, because I believe they are genuine and sincere. However, somewhere along the line, we have to fish or cut bait. I think the time has come that we should make a decision on this.
We are sitting with minority governments, and I am worried that this could fall off the shelf if we do not deal with it immediately.
The reason I made the decision with the Tlicho people is I looked in the gallery at the elders. If we had delayed that, those elders who had negotiated for 20-some years might not have been able to see Royal Assent. Therefore, I ask you, honourable senators, to consider this. I would like to make a friendly motion that we deal with this bill —
Senator Watt: Before you do that —
The Chair: I think at this point we could ask the witnesses to step aside, because we are now into a separate discussion. However, please do not leave.
Could you let Senator St. Germain finish his sentence, Senator Watt?
Senator Watt: I would like to respond to what was coming on TV today. I would like to give you an example of that.
The Chair: Senator Watt, I have asked you to wait until Senator St. Germain finishes his sentence.
Senator St. Germain: I would certainly like to know what Senator Watt is thinking. The friendly motion would be that we move to clause-by-clause consideration of this agreement so that it can be reported back to the Senate at the earliest possible time.
The Chair: That is a motion that is open to debate.
Senator Watt: The people I wanted to respond to are already out of their chairs.
The Chair: They can come back if we need them.
Senator Watt: Senator St. Germain asked the federal representatives what could be jumping out at them; what was on the top of their mind. We are compiling things as a legislature that will end up in court. What was said by the representatives of the Crees? How many years have they been in court? They are still in court looking for solutions.
Nunavut has a $1.4-billion breach of contract lawsuit. At the same time, the Attorney General, the defence, said that Nunavut Tunngavik Incorporated was critical for negotiating on behalf of the Inuit before; however, now they are being told that they cannot represent the individual collectives for the companies or the association.
The Chair: Senator Watt, I take it you are saying that this committee still has questions that you think it should put forward.
Senator Watt: Yes. We have heard only one side of the coin. We have not heard from the list of witnesses who are on the other side of the coin. Waiting another few months will not kill anyone. We are rushing ahead, and I do not agree.
The Chair: We have not decided whether we are rushing ahead. There is a motion on whether we should.
Senator Milne: I will speak against the motion, because this committee has never done clause-by-clause consideration on the same day it has heard witnesses. It is not a way that this committee proceeds or does due deliberation. I am strongly against this motion.
I believe we have further witnesses on the list who have already been contacted and who are prepared to come. I think we must hear from them.
Senator Andreychuk: I agree with Senator Milne that we do not go to clause-by-clause consideration on the first day. I could point out the exceptions that have been made for justifiable situations over the years. The question is whether this is one of those situations.
We are all mindful of the years taken on these negotiations for many Aboriginal issues. We have been very conscious of that. However, when the groups have finally negotiated with the government, have gone through the House of Commons and they get here, it is almost like the light at the end of the tunnel. We keep shutting that tunnel down.
We could have, and perhaps should have, sat over the summer to at least obtain our evidence. I think some of us thought there was a prorogation.
The Chair: We did not have this bill at that time.
Senator Andreychuk: We have done pre-studies. We could have been ingenious. Nonetheless, these are our issues and the Aboriginal people are waiting. I think they followed a legitimate process. What we must weigh is whether we believe that more witnesses will shed light on this particular agreement. Or are they witnesses who will continue to point out the dilemmas that we have in dealing with these contracts? As everyone has said, there is no absolute certainty. Is this the best effort and the best attempt at this time by everyone sitting at a table with a high degree of trust and involvement?
If we delay, is that just to the people to whom we hold a fiduciary responsibility? I invite senators to move more expeditiously than we have been moving.
The Chair: Thank you. I will go now to Senator Adams. Since we are running out of time, I will put the motion to the committee.
Senator Adams: Yes. If the rumours are true, the Senate might break for Christmas today or tomorrow. If we delay this again and we do not come back until after Christmas, we do not know what will happen to the Prime Minister of the day. We talk every day about politicians who are waiting for his exit.
The overlap agreement has nothing really to do with the government. It deals with hunting areas among the Inuit. At least we have something in there. The people in Nunavik have been going somewhere every year for quotas. If this bill passes, at least they will have more in respect to hunting. If anything, this question may be constitutional.
The Chair: Thank you. I will note that procedurally, even if this committee votes to do clause-by-clause consideration and accepts this bill right now, it is highly unlikely that the bill will become law before the Christmas break. We would have to have leave, and I suspect that leave might not be granted for accelerated third reading in the Senate.
Senator St. Germain: I have been advised that we are sitting tomorrow. I just received that information. I do not know how accurate it is.
The Chair: This is possible. I think it is time to put forward the motion. I think both sides are clear. Senator St. Germain has moved that the committee proceed now to clause-by-clause consideration of this bill.
Is it your pleasure, honourable senators, to adopt the motion?
Some Hon. Senators: No.
Some Hon. Senators: Agreed.
The Chair: In my opinion, the ``nays'' have it. Do members want a roll call vote?
The clerk will call roll.
Senator Fraser: No.
Senator Andreychuk: Yes.
Senator Jaffer: No.
Senator Joyal: No.
Senator Merchant: No.
Senator Milne: No.
Senator St. Germain: Yes.
Senator Watt: No.
Adam Thompson, Clerk of the Committee: Yeas 2, nays 6, abstentions nil.
The Chair: The motion is not carried.
Honourable senators, before we adjourn this meeting, there are three other small pieces of business. The first two relate to bills that have been referred to this committee. One is Senator Lapointe's bill, Bill S-213. We will circulate to you letters from the Senate Law Clerk attesting that this bill is in the same form as it was when passed by the Senate in the last session and a summary of its legislative history from the Library of Parliament.
In the matter of Bill C-2, I urge all members of this committee to submit lists of witnesses as quickly as possible. I know the Senate will rise soon for Christmas and we are all busy, but we will need a solid list of witnesses on Bill C-2. I rely on you for that.
The next item of business deals with circulation of any matter of business that we receive in only one official language. In the past, the practice had been that if briefs were received in only one official language, they were made available but not necessarily circulated. On other occasions or in other committees, the practice is to circulate briefs to committee members in the language in which they are received to be followed by translation as soon as the translation is available. The final approach is not to circulate them until both languages are available.
My own view is that sometimes if briefs are of particular interest and we do not have time for translation, it would be appropriate to circulate them immediately to give the senators the benefit of studying them, and we would circulate the translation as quickly as possible.
Senator Jaffer: I know that in the House the brief has to be available in both languages before circulating. I believe the Senate is different. We are trying to give access, and sometimes groups that come before us do not have the ability to translate. If we talk about trying to provide access in the Senate, we should accept the brief in the language provided to us and then get translation instead of denying the person presenting. A lot of this work is done in written form.
The Chair: You would recommend that we circulate, if necessary, before the translation?
Senator Andreychuk: I would agree with Senator Jaffer. When witnesses appear, they should be able to provide material and evidence in the language of their choice.
However, I would expect everyone who has a responsibility to be bilingual, i.e., the federal government, would come with both languages available. I would not opt out if they came with only one, but that would then be the exception and not the rule.
If a brief comes in one language, I prefer that I receive it as quickly as possible and that the clerk be instructed to send it for translation immediately and to inform us of that in an attached note. For example, with respect to the Barreau du Québec, had I received it two days earlier, with my French I could have stumbled through enough of it to have a better ability to deal with the matter.
The Chair: I think senators are basically in agreement with that position.
Senator Joyal: This is something for the committee internally. As Senator Andreychuk said, there are briefs that are very important for the sake of this committee's work. We are pressed by time, but I think that we cannot circulate publicly on behalf of the committee a document that is only in one language. For the work we do individually, to have access to the brief is an important issue. The case of the Barreau du Québec is a good example where a brief was not circulated in the other place.
The Chair: The clerk shall conduct himself as we have agreed.
I would like on behalf of our committee to thank all the people who make our work possible. There are so many interpreters, clerks, researchers, support staff, pages and others. The making of lists is dangerous because you always forget people. We owe them all an enormous debt of gratitude, and I would like to wish them all a wonderful holiday season and a wonderful new year.
The committee adjourned.