Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 12 - Evidence - June 17, 2009
OTTAWA, Wednesday, June 17, 2009
The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill C-41, An Act to give effect to the Maanulth First Nations Final Agreement and to make consequential amendments to other acts, met this day at 6:29 p.m. to give consideration to the bill.
Senator Gerry St. Germain (Chair) in the chair.
[English]
The Chair: Good evening. Welcome to all honourable senators, members of the public and viewers across the country watching these proceedings of the Standing Senate Committee on Aboriginal Peoples. You may be watching on CPAC or possibly on the web.
I am Senator St. Germain from British Columbia, chair of the committee. Our mandate on this committee is to examine legislation in matters relating to the Aboriginal Peoples of Canada generally.
[Translation]
Before getting to the heart of our mandate, which is a study of Bill C-41, I would like to introduce the committee members who are here this evening.
[English]
I will start on my left with Senator Brazeau from the province of Quebec. Next to Senator Brazeau is Senator Raine from the province of British Columbia. Next to her is Senator Brown from the province of Alberta. On my right is Senator Peterson from the province of Saskatchewan. Next to Senator Peterson is Senator Campbell from British Columbia. Next to Senator Campbell is Senator Carstairs from Manitoba.
This evening, the committee examines Bill C-41, An Act to give effect to the Maanulth First Nations Final Agreement Act. The Maanulth First Nations Final Agreement is the second comprehensive treaty concluded under the British Columbia treaty process and the first under that process that involves more than one First Nation community. The Maanulth First Nations Final Agreement provides five Maanulth First Nations with certain rights and benefits regarding lands, resources and self-government over their lands, resources and members. The final agreement sets out the treaty rights that will be accorded to Maanulth First Nations and protected under the Canadian Constitution. The final agreement creates mutually binding obligations and commitments on the negotiating parties and can be relied on by all persons.
To discuss the bill further, we have before us tonight Minister Strahl, a great British Columbian in his own right, and his parliamentary secretary, another great British Columbian, John Duncan, M.P. They are accompanied by Eric Denhoff, Chief Federal Negotiator. With them is Lorne Beiles, Counsel at the Department of Justice Canada. We welcome you to our committee hearing.
Minister Strahl, I understand you removed yourself from an important cabinet committee meeting, which you chair, by the way, so that you can be with us for 20 to 30 minutes. With that in mind, perhaps you can make a brief presentation on the bill, which will be followed by brief questions from senators.
Hon. Chuck Strahl, P.C., M.P., Minister of Indian Affairs and Northern Development and Federal Interlocutor for Métis and Non-Status Indians: I begin my remarks by thanking you and the committee for inviting me to appear before this important committee again. It has been a busy spring for us all and it is proving to be busy right up to the last moment here. It is a delight to be back because this day and this bill are both important.
On June 9, we talked about Bill C-28, An Act to amend the Cree-Naskapi (of Quebec) Act. Today we focus our attention on another historic bill that will occupy a significant place in the history of our country and our government's relations with First Nations people, Bill C-41, the Maanulth First Nations Final Agreement Act.
Before I go further, I want to take a moment to thank you, chair, and honourable senators for the vital role you have played in enabling us all to achieve as much as we have as quickly as we have with this bill and others. This recent burst of activity, combined with the steady accomplishments that we have achieved together over the last couple of years, make it clear to me — and it should be clear to all Canadians — that we are experiencing a profound period of renewal and progress in our country. There is much work to do, but I have been encouraged, and I think all Canadians should be encouraged, by the fact this committee has been very activist. We have been able to muscle through important and historic legislation. For that, I thank you.
In addition to the work of the committee and the legislative work, we were also able to celebrate on June 11 last week the one-year anniversary of the Prime Minister's apology on behalf of all Canadians. I was delighted to take part in that apology as the minister. Working with the former residents of the Indian residential schools, realizing the profound impact of that apology and what that statement has been able to generate has become more than only a symbolic act. It has become a way to rekindle relations between the Government of Canada and this country's Aboriginal Peoples. The gesture a year ago was compelling, and I believe the impact is only now beginning to be felt across the country and even around the world.
As well, I was privileged to be in the Lower Mainland of British Columbia to participate in the celebration to mark the coming into force of the Tsawwassen First Nation Final Agreement Act. You were there as well, Mr. Chair. It was a great day. It was the first urban treaty in Canada, the first agreement negotiated and signed pursuant to the British Columbia treaty process to come into effect. It was a big day and a proud day for the Tsawwassen First Nation and many others who worked on that treaty.
In April, I was privileged to be in Port Alberni on beautiful Vancouver Island to sign the Maanulth First Nations Final Agreement. That ceremony was meaningful as well. It is a landmark accord. It gives the force of Canadian law to the agreement and that is what brings us together today. I do not know if we need to go into the facts, but I am happy to discuss the details of the Maanulth First Nations Final Agreement, Bill C-41, that transforms this agreement into law.
I do not know if that is necessary. I know at second reading in the Senate the committee made as strong and persuasive a case in favour of the bill as anything that I might say. Everyone has had a chance to review the bill and I have appreciated your strong words of support.
In the Senate debates, there was a thorough and convincing argument on the five key elements of Bill C-41. You spoke, Mr. Chair, about how the Maanulth First Nations Final Agreement gives the Maa-nulth communities authority over the use of their traditional lands and how this authority gives them the power to boost economic development in their communities.
You spoke about how the Maanulth First Nations Final Agreement provides the Maa-nulth communities with capital transfers and the immediate and ongoing financial resources they need to fund vital social services and to boost social developments in their communities.
You spoke about how this agreement invests the Maa-nulth communities with taxation powers, making it possible for them to tap into community wealth and use that wealth to develop their own unique responses to current needs and future challenges.
You spoke about how this agreement clarifies the status of natural resources in the region and, in so doing, strengthens the ability of the Maa-nulth First Nations to manage resources on their land, develop thriving resource- based industries and harvest renewable resources in a environmentally sustainable way.
You also spoke about how the Maanulth First Nations Final Agreement equips the people of the Maa-nulth communities with elected, accountable governments, governments that enable these communities to chart their own course, governments that enable them to work as equals with other governments in the region and across the province, and governments that arm them with the power to assume their rightful role in the overall growth, development and prosperity of Canada.
The final agreement and, by extension, Bill C-41 supplies the Maa-nulth people with the vital tools they need to build increasingly prosperous, vibrant, successful communities. I believe all committee members agree with these words. Indeed, I need only to look at the committee's March 2007 report as proof of this agreement.
In that forward-looking report, the committee identified six factors that are essential for Aboriginal economic development. The report stated that the federal government must renew its approach to Aboriginal economic development by negotiating and signing comprehensive final agreements with First Nations communities. We are taking that action.
At the same time, these agreements, such as the one we have before us tonight, enable these communities to fulfill the five other factors the committee identified in its report as well.
Equipped with this final agreement, the Maa-nulth people can partner with industry. They can overcome Indian Act barriers to development. They can access traditional lands and natural resources. They can develop vital community institutions such as modern governance regimes. They can develop, and then take advantage of, culturally relevant education and practical training.
We are not the only ones who recognize the transformative meaning of the Maanulth First Nations Final Agreement. I believe the Maa-nulth people do as well. In fact, they appreciate the value and the potential of the agreement most of all. I gained a clearer understanding of that appreciation at the ceremonies that we were at together in Port Alberni to participate in the signing ceremony and the celebrations that went with that signing.
During those discussions, ceremonies and the fine speeches that were made, I was able to understand better the satisfaction and fulfillment on the faces of the elders, some of whom have given their lives to stand up for this sort of agreement. It was exciting to see how the young people reacted to the final agreement and the celebration that took place. It was wonderful to see the extended community come together for that ceremony to say, "We support this as well.''
I heard confidence there from the people that spoke, and a belief in the words of the leaders, such as hereditary Chief Anne Mack of the Toquaht Nation, who said the agreement brings her people one step closer to realizing the visions of her ancestors, visions of a bright future for her community's children and the generations of children to come.
Mr. Chair, I ask that you and your honourable senators here today take another step to bring us yet closer to realizing those visions; one step closer to creating even healthier, more vibrant and prosperous Maa-nulth communities for years to come. I ask you to continue your support for Bill C-41. I ask you to pass this legislation as quickly as possible. I know some people with us tonight that are maybe in the audience and who may be witnesses later will be delighted and more delighted than me at driving this agreement through to conclusion in this spring session.
The Chair: Thank you, Minister Strahl, for recognizing the economic development study of this committee. It is not mine; it is ours. I look at Senator Dyck, Senator Lovelace Nicholas, Senator Campbell and Senator Peterson. They were all part of that study, and they played a significant role in coming forward with the study and the recommendations that flowed from it.
Now I will open up the meeting to questions.
Senator Campbell: I congratulate the negotiators on all sides. This document is not easy to read to the end. There are many sections where I know there was deep soul searching on the part of everyone. I want to commend the negotiators on all sides for staying in that room and coming to this end.
I believe that perhaps Mr. Denhoff will be able to answer this question. One question in the Senate today involved water and how water is regulated within the agreement. I understand that you may be able to enlighten us on that question.
Eric Denhoff, Chief Federal Negotiator, Indian and Northern Affairs Canada: There are two elements to water in the treaty. One element relates to reservations or allocations of water under the provincial British Columbia water system for water that flows through a river or a stream. The other element relates to groundwater and, as I understand it, the question that was asked related to ground water.
British Columbia at this point does not have provincial law regulating the volume of groundwater under Maa-nulth lands, the lands that will become Maa-nulth First Nation lands after the treaty. The agreement states, however, that if British Columbia does bring into force laws regulating the volume of groundwater under their lands, the groundwater can be extracted and used. If it is reasonably available, British Columbia will attempt to reach an agreement with the individual Maa-nulth First Nation on the volume of groundwater that can be extracted and used for specific purposes, in this case, for domestic and agricultural or industrial purposes. That approach is essentially the same one that was taken on allocations of water from streams and rivers.
The agreement specifies that any such agreement that B.C. might negotiate must take into account sustainability of the aquifer, the availability of the water and its quality, the water needs of the Maa-nulth First Nation and the requirements of any applicable federal or provincial law. This agreement is a bit unusual in that the current legislative regime in B.C. is such that B.C. has not yet legislated in an area of primary provincial jurisdiction. It is not an area of federal jurisdiction. A landowner in British Columbia, a farmer or other person, can extract groundwater more or less at will now, with few restrictions. It is anticipated that at some point in the future, B.C. will pass regulations dealing with that situation. This agreement provides a mechanism for Maa-nulth's interests to be taken into account.
Senator Campbell: I want to be clear. At the present time, are there no regulations that govern anyone with regard to groundwater?
Mr. Denhoff: That is right. Nothing in this agreement changes the federal-provincial definition of powers relative to water.
Senator Campbell: Thank you very much. I should point out that Mr. Denhoff is the federal negotiator that I spoke of.
Senator Carstairs: I have three areas of questioning. On page 5 of the Maa-nulth First Nations Final Agreement, I noted that there was a section on international legal obligations. Section 1.7.4 says, "Canada will Consult with the applicable Maa-nulth First Nation Government in respect of the development of positions taken by Canada before an International Tribunal . . . .''
Were they consulted on the United Nations Declaration on the Rights of Indigenous Peoples, which your government chose not to support?
Mr. Strahl: I cannot answer that. I will ask Mr. Denhoff to answer.
Mr. Denhoff: I do not think they were, strictly speaking,. The provisions of section 1.7.4 on page 5 of the agreement will not take effect until the effective date of the treaty, which will be sometime after Royal Assent is granted. It is possible that if the situation occurred after the effective date of this treaty, Canada would have entered into consultation with Maa-nulth.
Senator Carstairs: That answer leads to the next question. This process is ongoing, and Canada could change its position at any time on the United Nations declaration on indigenous peoples. Is it the intent of the minister to consult now when this treaty takes effect with respect to the position of this community on the United Nations declaration of indigenous peoples?
Mr. Strahl: I will say my part, and then ask the justice lawyer to comment.
It is not the intention of the government to change our position on the UN Declaration on the Rights of Indigenous People. We have laid out our position, both at the United Nations and in other formats. There is no intention to change that position. Perhaps our legal adviser can tell us more.
Lorne Beiles, Counsel, Department of Justice Canada: The provisions of the final agreement relating to international legal obligations are meant to ensure a process in the event of consultation. Ensuring that the rights given to Maa-nulth First Nations under the final agreement do not result in Canada violating any pre-existing international legal obligations, a process under which, if there is a potential conflict between the rights of Maa-nulth and their law-making authorities and a legal obligation, the Maa-nulth law can be amended. The final agreement is not geared towards things like the UN declaration. It is geared towards a situation like taxation, for example. Maa-nulth has certain taxation powers. Canada has certain obligations under international taxation agreements. If Maa-nulth taxation powers could somehow violate Canada's obligations under a tax convention that Canada has with another nation, these treaty provisions would be triggered. The provisions provide a process under which either Maa-nulth would change its laws to ensure that Canada is now brought back into compliance with its legal obligations, or there is a process under which if Maa-nulth disagrees with Canada's position, and the Maa-nulth law affects the international obligation, there can be a process of determining whether Maa-nulth law has that impact. It is geared toward specific instances in which Maa-nulth's law-making authority could impact or adversely affect an existing obligation that Canada has under international law, or obligations that Canada assumes under international law.
The provision that you referenced, 1.7.5, deals with a situation in which a tribunal fines —
Senator Carstairs: I referenced 1.7.4.
Mr. Beiles: Similarly, 1.7.4 applies where, if Canada must respond to an international tribunal on an issue relating to how Maa-nulth law affects Canada's international obligations, Canada will consult first with Maa-nulth.
Going back to the tax example, if Maa-nulth's tax powers impact on Canada's obligations under an international treaty, and Canada is asked to respond to this situation, Canada will consult with Maa-nulth before it responds. The agreement is meant to deal with the possible conflict between Canada's international obligations and Maa-nulth's law- making authorities because, from an international perspective, any law of Canada, including a law made under a Maa- nulth government, is a law that could affect Canada's international legal obligations.
Senator Carstairs: My second question is with respect to child protection, which is found on page 167 in the treaty. We know from the 2007 Wende report that there are more Aboriginal children in care than any other single group of children, and we know that, on average, 20 per cent fewer resources are spent on those children in care.
Will this agreement ensure that adequate resources are put into place so that children in this community can receive the resources they require?
Mr. Strahl: I will ask our negotiator to comment on this question as well.
We are aware, of course, not only of the Auditor General's report but also of reports by this committee and others on child and family services. It is a concern of the government and a priority to put better systems in place for First Nations and Aboriginal people across the country for child and family services. We have signed tripartite agreements with First Nations, provincial governments and the federal government in Alberta, Saskatchewan and Nova Scotia. In the last budget, we included allocations to expand those agreements to two more provinces, which we hope to do in the coming weeks or over the summer.
We are halfway to doing a better job, moving to an apprehension model, to a prevention-based model, that involves adequate funding and, more importantly, tripartite arrangements with First Nations so that they are actively involved in the development of the programming in a culturally sensitive way, as well as in a prevention way to help families in order to prevent children from being taken from their families. We find ways to help those families well before apprehension is necessary.
We have signed agreements in three provinces. We will have two more agreements this year, and there are two or three more provinces and First Nation groups that are on the cusp of being ready to sign as well. We are halfway there, but there is more work to be done.
Mr. Denhoff: The treaty in this section lays out the law-making authorities of the Maa-nulth, and a good portion of their relationship with the provincial government that handled a fair bit of this matter historically.
The question of whether there is adequate funding is a more difficult one. That is in part managed by Chapter 18 of the agreement on fiscal financing. In section 18.1.3 of that chapter, Canada and B.C. undertake that in these fiscal financing agreements we will take into account a number of things, including
the cost of providing, either directly or indirectly, . . . Programs and Services that are reasonably comparable to similar programs and services available in other communities of similar size and circumstance. . . .
Obviously, that issue was contentious and one that Maa-nulth pushed for significantly. The actual funding dollars programs are not found in the treaty but rather in the Fiscal Financing Agreement, which is outside the treaty and renegotiated every five or eight years, depending on the treaty.
Senator Carstairs: I have a quick final question on ratification. I looked at Chapter 28 on page 273, and I looked at tab 15. Nowhere, unfortunately, did I find the actual results. How many in the community actually supported this treaty?
Mr. Strahl: Mr. Denhoff has the numbers hot off the press.
Mr. Denhoff: The requirement of the Maa-nulth was that there must be two thirds or greater attendance of voters to vote across the communities and there had to be a majority of those. At the end of the day, more than 80 per cent, on average, of those who voted, voted in favour of the treaty. It was as high as 90-plus per cent in some communities. There was more than an absolute majority of voters.
Senator Carstairs: Thank you.
Senator Lovelace Nicholas: Welcome to everyone on the panel.
I hate to admit that I did not have a chance to read all of this document. I have a couple of concerns and maybe you can tell me if they are dealt with in the agreement.
Were any women consulted on this agreement?
Mr. Strahl: Some of the women consulted were the chiefs. The majority of the chiefs are women, for example. There was broad community consultation in each community.
The chiefs can probably speak to this question more directly, but there was no lack of female leadership and female influence on the negotiating teams for this agreement. I am satisfied that there was lots of female influence on this agreement.
Senator Lovelace Nicholas: Is there anything in this agreement that deals with women's issues?
Mr. Denhoff: Generally speaking, the provisions of the Canadian Charter of Rights and Freedoms apply in the treaty, along with other federal and provincial laws. It is a democratic form of government. The government must be in majority, democratically elected, transparent, open and accountable. Their constitution is put forward to the entire community for approval in a ratification process, as the treaty was. There are those general protections.
Mr. Beiles: This is a treaty under section 35 and section 25 of the Constitution Act, and the Constitution Act specifically provides that Aboriginal treaties or land claim agreements apply equally to women and men. That additional protection is provided in the Constitution, which is incorporated in this agreement.
Senator Lovelace Nicholas: I have a couple more questions. If, in the future, even in 100 years, First Nations run out of land, can they renegotiate for more land?
Mr. Strahl: The land that is designated is set out in the agreement, and it is 26,000 hectares. There is quite a bit of land involved. I am not sure what you mean by "run out.''
Senator Lovelace Nicholas: First Nations are the fastest growing peoples in Canada. What if, at some point, there is no more land for them to build on?
Mr. Strahl: Thank you for that clarification. There are provisions in the agreement that deal with that situation.
Mr. Denhoff: There are provisions that allow the Maa-nulth to acquire additional lands and have them added to settlement lands following the treaty, with the agreement of governments. In some cases, they have already identified parcels that they were not able to acquire during the treaty process but expect to be available in the future, and we have approved those for addition to the settlement.
Senator Lovelace Nicholas: In the meantime, what if the government of the day refuses? What happens then?
Mr. Denhoff: There is a process for dispute resolution in most chapters in the treaty. I would have to look in detail for that one, but there are a number of mechanisms.
Senator Lovelace Nicholas: I read the part where they will have their own citizenship. What happens, for example, if they refuse to allow non-status women, non-status under section 12(1)(b) of the Indian Act, to live in the communities from which they come? Is there recourse for these women such as an ombudsman or somewhere they can go to gain acceptance?
Mr. Strahl: That is an excellent question. I encourage you to follow that up with the chiefs also when they give testimony as well.
There are provisions in the treaty. Citizenship replaces what we consider band membership, and they are citizens of a treaty-holding First Nation. There are provisions within the treaty for dispute resolution of any contentions on the citizenship issue. Those provisions would deal with those situations adequately, I believe.
Senator Lovelace Nicholas: There is recourse, then, for an ombudsman within the First Nations.
Mr. Strahl: I do not think it is an ombudsman.
Senator Lovelace Nicholas: Is it something like an ombudsman concerning human rights?
Mr. Denhoff: There are a number of protections. First, the criteria for enrolment of someone in the treaty are different from the Indian Act. The criteria are that someone be of Maa-nulth First Nations ancestry so it does not differentiate in the way that you might be used to under the Indian Act. Second, there is a whole dispute resolution process that ends up with judicial review. If, for example, a government became obstreperous and said, we are not registering you in any way, then you can go through a series of processes ending at judicial review and the courts will enforce the provisions of the treaty.
The Chair: Minister, I gather you must go now. Does anyone have a pertinent question for him before he leaves? He must leave at this time. His Parliamentary secretary, and Mr. Denhoff and Mr. Beiles will remain.
If there are none, thank you very much, Mr. Minister.
Mr. Strahl: Thank you very much again for your support and help. We look forward to the rest of your testimony and your results.
Senator Brazeau: Mr. Denhoff, my question will be directed to you. Obviously we have this piece of legislation in front of us that is pretty straight-forward. More important, the Maa-nulth people have ratified this agreement and want it to go through because this agreement is what they negotiated with the Government of Canada. This agreement clearly demonstrates that when there is a will there is a way. Negotiation is better than confrontation, especially in light of the fact that many times these discussions and negotiations take a long time. I believe one of the keys in the future is how to reduce the number of years to ratify such agreements.
Can you elaborate, perhaps, on the taxation regime that will be found within this agreement? I assume that this is something that, first and foremost, the Maa-nulth people wanted — and I will pose the question to them — but from the standpoint of the Government of Canada, to develop and assist in developing their economies. Can you elaborate on what that regime will look like? Is it taxation on goods and services? Is it income tax and whatnot?
John Duncan, M.P., Parliamentary Secretary to the Minister of Indian Affairs and Northern Development: I can elaborate. I will provide an introduction first, which is along the same lines that you talked about. This agreement is straightforward in many ways but it has been a long time coming. The person who is spoken about most often in terms of the origins of this treaty is Bert Mack, the former chief of the Toquaht and former hereditary chief. Hereditary Chief Anne Mack, Toquaht Nation, who is his daughter, is with us today. For 67 years, he was chief. When he was made chief, the message from his father was to go and negotiate a treaty. This negotiation has been a process for a long time.
The taxation provisions are an important part of this agreement. The First Nation government will be treated in exactly the same way that a municipal level of government would be treated in terms of taxation, and the First Nation government will have taxation power.
The current section 87 tax exemptions under the Indian Act are no longer. They will be phased out for individuals over 8 years for transaction taxation, and 12 years for other taxes such as income tax. There are other aspects of that whole taxation issue and it might be worthwhile for me to bring in the expert, Mr. Denhoff, to talk about it at this time.
Mr. Denhoff: I will do my best. I am always reluctant to speak on taxes because the Department of Finance is ultimately responsible for the negotiation of those elements.
However, this agreement is similar, and identical in respect to taxation, to the Tsawwassen agreement and the Nisga'a agreement. That is to say, since federal policy encourages taxation by Aboriginal governments to support self- reliance and accountability, that policy is reflected in this agreement. The taxes will be administered by the Canada Revenue Agency and they will be collected and then remitted through an agreement to the Maa-nulth First Nations to help support self-reliance, community programs and services.
At the end of the day, after 12 years, someone from the Maa-nulth First Nation and a non-Aboriginal sitting in a coffee shop will both pay under the same income tax approach, the same GST and PST, and so on. Non-Aboriginals living on Maa-nulth First Nation lands will not pay taxes to Maa-nulth unless there is an agreement outside the treaty between the Government of Canada and Maa-nulth. That provision preserves Parliament's right to tax Canadians and does not provide for taxation without representation.
I wish to correct something. When we talked about international tribunals, Senator Carstairs, the example we used was an international tax agreement that could affect them. The taxation agreement does not apply in respect to international legal obligations; it is more like migratory birds tribunals, fisheries tribunals or things like that. That point is a small, technical issue but for the record, we want to keep it straight. The finance department wants me to keep that point straight so we will.
I do not think there are any other differences here between what you saw in the Tsawwassen or Nisga'a agreements. Those are the basic provisions.
Senator Dyck: The question I have for you relates to provisions of the Indian Act with respect to status. I have had a quick look at the proposed section 12 of the bill, and my reading may not correct, but it sounds like the Indian Act will be effective still for the purpose of determining whether or not an individual is an Indian.
Mr. Duncan: You are absolutely correct in that the Indian Act is no longer applicable to the Maa-nulth First Nations, with the exception of the registration provisions of the Indian Act. In terms of some of the detail around that provision, I will ask Mr. Denhoff to speak to that.
Senator Dyck: Is that a standard provision?
Mr. Denhoff: In the modern treaties? Yes.
Mr. Duncan: Very standard, yes.
Mr. Denhoff: The reason it arises is, during the negotiations, Maa-nulth, as did Tsawwassen and Nisga'a, said there are particular programs the government has to encourage economic development, special health programs and that sort of thing. If we are no longer Indians within the meaning of the Indian Act, we would not be able to apply to those programs and we would be totally shut. The economic disadvantage may continue for some years after the treaty is completed. How do we know we can still access those programs? The fix by the Department of Justice was to have the Indian Act apply only for the purpose of determining Indian status in order to apply for those kinds of programs. The Indian Act does not apply in relation to anything else such as taxation, lands and estates, trusts or any of those sorts of things.
Senator Dyck: Does that mean that the number of so-called registered Indians then is important with respect to resources that flow to the Maa-nulth? Is that number tied to its relationship?
Mr. Denhoff: Not really, no: The fiscal relations agreement, in part, is based on population. Every X number of years, they will renegotiate their education and health funding, and those sorts of things. Population is a factor in those negotiations. Whether they are status Indian is not relevant to those negotiations.
Senator Dyck: In that case, you mentioned that part of the treaty is that the Maa-nulth will be able to decide for themselves who their citizens are?
Mr. Denhoff: Essentially, within the constraints of the treaty, yes.
Senator Dyck: When they go forward and are negotiating resources for health, for example, or within a particular area, if a large number of their citizens are not registered, will that affect their funding regions?
Mr. Denhoff: Yes, the funding agreement is not dependent on being a registered status Indian; in most cases for federal purposes, it is dependent on being resident on the settlement lands, typically for most federal services, and being eligible for enrolment as a Maa-nulth citizen.
However, to be eligible for enrolment as a Maa-nulth citizen it is not as narrow and restricted as the Indian Act is for registration under the act. If someone is of Maa-nulth ancestry they could enrol, and if they are on settlement lands, those numbers will be used by Maa-nulth in their negotiations with the various federal departments for funding.
Senator Dyck: However the Maa-nulth themselves would be able to determine whether that person is a citizen?
Mr. Denhoff: Essentially, within the context of the agreement, there are two or three determinants, but they are much broader than the Indian Act.
Senator Dyck: That is an important question to ask because of what is happening in British Columbia now with respect to the Sharon McIvor case on who determines membership. If they are able to control their membership and determine who their own citizens are, that is a positive thing.
Mr. Duncan: To clarify the question and the answer, I think what we are all agreeing on is that the department will continue to enrol people in the registry, but the First Nation determines which people on a registry are Maa-nulth citizens. Does that make sense? The department does not make that decision; the First Nation does.
Senator Dyck: They can tell you who should be on the registry?
Mr. Denhoff: There will not be an Indian Act registry per se; there will be an enrolment committee that enrols them as a Maa-nulth. The agreement says that if someone is of Maa-nulth ancestry, they are adopted or they are a descendant of someone who is eligible for enrolment — they are an adoptee or they have been accepted by the Maa- nulth into the tribe — then they would be eligible for enrolment.
They would have Indian status only for program purposes, but they would not be Indian Act registrants in the same sense that they would have considered registrants traditionally.
The other thing is that the funding in the future for those programs and services is a shared responsibility among Canada, British Columbia and the Maa-nulth. They will generate natural resource revenues from taxation and other things, and they will contribute directly to the cost of those services, which is a different construct in some senses than exists now.
The Chair: Honourable senators, we have more witnesses to come, and Mr. Denhoff, the chief federal negotiator, has offered to stay in the room in the event that someone has a question of him.
Before we continue, I see Mr. Duncan, the parliamentary secretary, and Mr. Denhoff and Mr. Beiles are still here. I want to thank them for their contribution tonight and for their testimony thus far.
Honourable senators, we now have before us the representatives of the Maa-nulth First Nation. I do not think we can thank them enough for their patience. They talked about the chief of 67 years, and I am amazed at the patience that our First Nations people have in this country.
Without further ado, we have before us, Chief Charles Cootes from the Uchucklesaht Tribe; Chief Tess Smith from the Kyuquot/Checkleseth First Nations; Chief Violet Mundy from Ucluelet First Nation; Chief Anne Mack from Toquaht Nation; and the chief negotiator for Maa-nulth at the table, Gary Yabsley.
Unfortunately, Robert Dennis from the Huu-ay-aht band could not be with us. Some of us have had the privilege of talking to him, but he is not here with us tonight. I thought I should mention him because he played an integral role in arriving at this agreement.
I gather, Chief Cootes, that you have a presentation. I will ask you to keep your remarks brief because you have waited long enough.
With that, we will ask fulsome questions and answers following your presentation. Chief, you have the floor.
Charles Cootes, Chief, Uchucklesaht Tribe, Maa-nulth First Nations: Thank you, chair. I am humbled to sit here in front of honourable senators today. I will start off by saying that this has been a long journey. We have many, many elders that have started the journey who are no longer with us. They are in a better place and probably looking down on us with a lot of pride from where they are today. As well, we have many youth who are chomping at the bit to be part of the treaty, to move it ahead, to move into leadership positions and to govern our people.
It has been a long journey for all of us, since 1992, when formal treaty negotiations kicked off, for us, under the British Columbia treaty commission process, and even longer for our past leaders, who have been trying to find a fair solution to the land question since the early 1900s.
I will note some of those organizations that have been with us since the early 1900s. There is the Native Brotherhood; the West Coast Allied Tribes; the West Coast District Council; the Nuu-chah-nulth Tribal Council; and now our Maa-nulth Treaty Society. Our people are waiting anxiously at home for the final steps to complete this long journey. These steps are, first, to move the Maa-nulth treaty legislation through the Senate process; and, second, to achieve Royal Assent by Canada's Governor General, Michaëlle Jean.
We are confident that the Senate will understand that Canada's negotiators, lawyers, technicians and politicians have been alongside us through the whole process since 1992. We hope that the Senate will expedite this bill through the Senate so that we can complete all the work that we need to do between now and an effective date that will be agreed upon by our three parties to the treaty. Then, we can get on with developing and completing what we have started in developing our laws that we will be drawing down at the effective date so that we can move ahead as a people and forge our own destiny in the future.
That is about as brief as I can be. Thank you.
The Chair: You should be a senator. We would expedite things a lot faster, sir, if you were part of our process here.
I had the honour of representing the government when the Maa-nulth presented to the Parliament of British Columbia. I thank you. I still have the paddle. It is an honour and it sits in a prominent place in my home. As an Aboriginal person, I cannot think of a greater honour that can be bestowed upon me.
We will now go to questions.
Senator Brazeau: Welcome to all of you. It is, indeed, an honour to have you here on the verge of what will be a special day for the Maa-nulth people. Congratulations.
I want to focus briefly on the process. Obviously, five communities are involved in this agreement. Obviously, these communities are all separate and individual communities. To sign this agreement, however, these communities had to come together to look at the bigger picture toward the greater goal of self-government and to have more control over their own affairs.
I like to dwell on the positives and the progress that we are making. Obviously, it takes time; that is a frustration. However, you have overcome that problem, and are moving forward and being progressive. What do you say to other communities across the country who may want to have an agreement similar to yours, depending on their particular situations, regarding the need to come together? Can you comment on that, please?
Mr. Cootes: Yes; as I mentioned earlier, it has been a long journey. It has been a difficult one. Any time more than one entity is trying to come to agreement on multiple issues, it is a tough move; it takes a lot of discussion, agreement and give-and-take in negotiations with the different parties.
In our communities, we all strive for the same thing: to accomplish an agreement with the rest of the people of Canada about how we can co-exist and move ahead together with something that is acceptable to all the people in Canada. The agreement that was negotiated today covers all the areas that we wanted to be involved in, as a distinct people. Our communities have been involved from day one. They have been comprehensively involved. In fact, our communities were involved in the development of our constitutions over a four-year period. The constitution spells out the rights of our citizens, the structures of our government, the powers, and many other things. Addendums to the constitution spell out how we should conduct ourselves in public and in government, and how all our decisions should be made in the best interests of our people.
Our government structure was developed from the bottom up as opposed to the top-down because we want our people to be involved. If we choose to have a central government, it will be from the bottom up. We will decide how that central government will operate and what it will do for our people. To date, there has not been a discussion on that. We are all proceeding independently. We will work together where economies of scale dictate that we work together with other First Nations in providing the best services we can for our communities, due to the limited finances that are available.
Senator Brazeau: Thank you very much. I commend you all for the hard work and the perseverance that you have shown to reach this point. Obviously, you are living testimony that you are indeed working for generations to come.
Senator Carstairs: Welcome. I checked with my leadership before I came to this meeting and I was told that there is a Royal Assent ceremony scheduled for 5 p.m. on Tuesday. It is my hope that this piece of legislation will be part of that Royal Assent ceremony on Tuesday at five o'clock.
My long journey has taken me, through my original career to the last 25 years in politics. My original career was as an educator, a teacher. I had the honour of teaching Aboriginal people of the Sarsi First Nation in Calgary.
Part of my drive in politics has been to ensure better educational opportunities for all children. That is what I want to ask about tonight. I want to know how you envisage an education system. Will you, for example, have one school board to look after the entire nation? Will you have individual school boards? You mentioned economies of scale. How do you envisage making the best use of educational dollars? We know that, on average, sometimes between $2,000 and $9,000 less has been spent per year on the education of Aboriginal children than on the education of non-Aboriginal children. How do you envisage this education, because I think the education of your children is the future of your nation?
Anne Mack, Chief, Toquaht Nation, Maa-nulth First Nations:
[The witness then spoke in her native language.]
It is an honour to be in this house today. I acknowledge the people of this land for allowing the business to take place on this land.
The Toquaht nation is small. We are 140 in population. We probably would not have our own school for many years, but education is important. We would bring in more cultural issues and build a foundation for our children. I believe that is where education begins.
This has not been possible without having the ability to live on our own traditional lands and practice our cultural beliefs. I believe that is a foundation. The education system in the surrounding areas would suffice, as long as that foundation is there.
Senator Carstairs: My second question deals with the maintenance of your culture and, particularly, your language through the education process. How do you envisage that occurring?
Ms. Mack: Currently, we are striving to revive our language. I think we would have more of an ability to revive the language by having community. Technology plays a big part in reviving it now, and we can reach members that live across the country through technology.
We will work with the speakers. There are many speakers who say they understand the language but do not speak it. They are the next ones we would work with because they have been silenced over the years. I do not think it would be that difficult to bring this language out, if there is a support system and an institution to do that.
Senator Lovelace Nicholas: It is nice of you to be here to answer our questions. Is your own government hereditary or elected chiefs?
Mr. Cootes: Our nation came together a number of years ago. I will use our nation as an example because there are different government systems within the five nations. We chose to recognize that there were three systems that we could use: One is a custom type of government; another is the government of Indian and Northern Affairs Canada, the Indian Act government; and the other is hereditary.
Through hard and difficult negotiations and compromise, we wound up with a provision in a treaty that allows us to have our hereditary chiefs seated in our governments, as long as they form up to 50 per cent of our government. The rest of our government seats must be elected in a democratic fashion.
Our particular government utilizes the three forms of government. By custom, we have five major families in our community, and we have a councillor for each of those families. This system is devised to move into post-treaty government. Those five positions are elected by the families in a democratic fashion.
We have our four hereditary chiefs, which addresses the traditional hereditary systems. We have two positions that are elected at large by the community as a whole: A chief councillor and a councillor at large who represent those people who are not represented by the five major families. It is all carried out in a democratic fashion.
Our government structure is a unique system. It works well. Our traditional government, our hereditary chiefs, are part of our decision-making body. They are not an advisory group. They are there as our government.
Senator Lovelace Nicholas: That leads to my next question about membership. Due to the McIvor decision, do you think you will have problems handling the influx of people who may join your membership, or will they join your membership?
Mr. Cootes: We have criteria in our membership about who can be a member. We use what is spelled out in our constitution, as well as what is spelled out in the treaty. I think a number of the criteria were mentioned earlier a couple times. I will defer to our lead negotiator, Gary Yabsley, to fill in the details that I may have missed.
Gary Yabsley, Chief Negotiator, Kyuquot/Checkleseth First Nations, Maa-nulth First Nations: The Maa-nulth treaty and the five Maa-nulth constitutions anticipated the consequences of the McIvor decision. The provisions in the treaty and, more importantly, the provisions in their constitutions, are much broader than McIvor. All five nations, through their own legislative regime, welcome far more people back into what is now called citizenship.
The issue you subsequently raised is the implications of that membership. That is an issue for governance, for all governments. How do we provide services for those members that belong to us? In that regard, the Maa-nulth are not any different than any other government.
Senator Lovelace Nicholas: I ask because there are women today who are still not accepted in their communities because of the royalties the communities are receiving. The communities are brushing these women off and I think it is about time we handled that issue. I want to ensure everything is okay with this issue.
Senator Raine: It is a pleasure to have you here to give us a little bit more education about your communities and your nations.
I am curious. Why are there only four hereditary chiefs when there are five nations?
Mr. Cootes: The hereditary chiefs I referred to are hereditary chiefs within our own nation of Uchucklesaht. Each of our nations has different numbers of hereditary chiefs. The lead chief in our culture is called "Ta'hii,'' the number one chief, and there are other hereditary chiefs beside those in each of our nations.
Senator Raine: I misunderstood and thought you were talking about what you would call a regional government.
Do you have a governing body that brings the five communities together, or are you completely independent?
Mr. Cootes: We are completely independent. We do not have a central structure. We have chosen to negotiate collectively as five nations under a treaty society because it was adequate for what we wanted to do. We do not have a central government.
Senator Raine: You live in what is arguably the most beautiful part of Canada. I have not been to the Northern communities, but I have been around Bamfield in that area.
I know that fishing is important for your economic viability. Will you also be active in tourism? Are there any fish farms on the coast; are you looking at fish farms, as well?
Ms. Mack: There are fish farms in the Clayoquot Sound. I do not know if there are in the Barkley Sound. We do not have intentions of providing that ability. It is a beautiful area, and leaving it in that pristine condition is what we would like to see.
I will expand a little bit on the hereditary system. The Toquaht have always maintained their hereditary system. We have not had an election, but to be part of this treaty, to be democratic, we will elect three councillors to work with us. We have two hereditary chiefs, and we will elect three councillors to work with us on our journey.
Senator Raine: I am glad to hear that you will protect the land, which truly is a magnificent part of Canada. Thank you.
Senator Dyck: Welcome to you all. It is a great day for you and it is a great day for Canada.
I will ask the same question I asked the other witnesses with regard to section 12 of the Indian Act.
From your perspective, what rationale was given to you for continuing to register some of your members under the Indian Act? The reason I ask is because, if my understanding is correct, the federal money that will flow to you will be related to the number of your members who are registered under the Indian Act. Then, I assume that perhaps you are eligible for funding for programs — for money from the provinces, for example — to make up the shortfall.
Mr. Cootes: In regard to our eligibility, the registry and the Indian Act have another purpose that I can think of. If our people chose not to be under our treaty, they still need to be registered and to be able to have services like any other registered Aboriginal in Canada. If that is the case, we are equipped to negotiate agreements to provide those services for our people who choose not to register. People have to make a choice of their own; if they want to be part of the treaty or if they do not. The majority of our people have chosen to enrol in our treaty and become members. The percentage is high. There are not many people who have not enrolled, but it is still open for them to enrol at any time, post effective-date as well.
Senator Dyck: The concern I have is that if they are registered through the Indian Act, there are certain provisions as to who can be registered through Bill C-31. Senator Lovelace Nicholas, of course, is the expert on that issue. With time, there is a loss of Indian status. There can still be a loss of Indian status through marriage. Your citizenship, you say, is much broader in terms of inclusion of people and that citizenship goes beyond the McIvor case.
Mr. Cootes: Yes; all our criteria for citizenship and membership deal with ancestry. We cannot deny citizenship or membership to someone who can prove they have Maa-nulth or Uchucklesaht ancestry if they choose to belong to the treaty. I will ask our lead negotiator to elaborate on that membership.
Mr. Yabsley: Maybe I can try to clarify the question, because there are a number of aspects to it that I need to understand better.
If the concern is that there is a diminishment of registered Indians under the Indian Act over time, that may well be the case — I am trying to imagine the scenario by which that diminishment happens — and simultaneously, an expansion of citizens under the treaty. The question, I assume, is whether there is then a diminishment of federal funding that flows to Indian Act Indians as a consequence. That is not our understanding.
As I understand, current Indian Act funding — and I may have this information wrong, because I am not a financial expert — is tied to Indian band members living on reserve, to the best of my understanding. That is a reality of our time.
If the question is whether there will be fewer Indian band Indians living on treaty settlement land over time, and therefore diminishment, it is my understanding, as best I have it at this point, that those programs and service dollars flow to the population of the treaty citizenship living on reserve. I think that is how funding works. There are probably a lot more people better suited to answer that question, but that is my understanding.
Senator Dyck: I hope that is how it works, because then it would cover the situation where there may be loss of status through marriage. Under Bill C-31 now, there is a second generation cut-off, but if the Maa-nulth have decided they will not have that cut-off, then these people are still considered citizens and they still receive the same amount of monies, then everything is okay, provided that is what the interpretation is.
Violet Mundy, Chief, Ucluelet First Nation, Maa-nulth First Nations: I want to respond on behalf of Ucluelet. One of our first goals when we made the decision to enter into treaty negotiations was to do away with the Indian Act for our nation. We found exactly what you are saying; that Indian Affairs differentiated us and labelled us off-reserve and on- reserve. When we entered into treaty negotiations, immediately we stopped using the words "on-reserve'' and "off- reserve,'' and we call them Ucluelet First Nations, wherever they live. We have members in Ontario and Alberta, and several in the States. We do not differentiate based on where they live.
Another of our goals is to rely totally on economic development, providing our children, young people and middle- aged people with an education to enter a career. In our nation, we have always been seasonal workers, fish plant workers. What I found in the research of my own nation was that we had a lot of high school students that went right into plant work because there was big money there. They graduated from school, but they kept working at the plant. They have been working at the plant for several years.
Now that the fishing industry is declining so rapidly, these 30-year-olds and 40-year-olds say they need a career. They have been coming to our treaty office and asking what is in this treaty in the next 15 to 25 years. They are starting to look at a career.
Recently, we have had several college graduates: a forester, a fisheries biologist, and someone who recently graduated in criminology. We have two more graduates coming up in recreation and hospitality. For the last few years, we have been planning for careers, and guiding our young people and children to stay in school and think about careers.
Our nation does not think about whether members are living away from home. They have felt the effects of a good part of our treaty negotiations when we went through ratification. We have 60 per cent who live away from home, but we reached out to them. We went to the towns where there is a large population of Ucluelet, and most of them want to come home. Some of them want to stay, for health reasons. Port Alberni is their home. We will not exclude them from any functions, scholarships or things of that nature. We do not differentiate between off and on reserve.
On our criteria for our citizenship, we do have a membership code under the Indian Act. Under the Indian Act, the membership code says quarter-blood Ucluelet. Our elders disagreed with that code totally. We have members, ancestors that have lived away for between 30 to 50 years. Our elders have never forgotten that they are out there.
When we reached out to our people in our treaty negotiations, we worked hard to look for them and find them. We found almost every one of them. They were touched that we wanted to include them in our negotiations and our ratification. That is our stand; that we do not look at off and on reserve.
Senator Brown: I wanted to ask you what First Nations citizenship means outside your reserve. Do you rely on Canadian citizenship if you travel outside the Canadian borders? I assume you retain your Canadian citizenship, do you not?
Mr. Yabsley: That is a good question, and it is an intriguing question because First Nations people have gone from being band members under the Indian Act, self-identified as being a band member, into the post-treaty world where they now use the word "citizen.'' That word is commonly used by Canadians, meaning the nation state of Canada.
There is a dual meaning here. It is appropriate for First Nations to call themselves citizens of their nations, not band members because band members are a creation of federal legislation. Although it is the same word, the Maa-nulth First Nations, for instance, travelling internationally will be Canadian citizens.
However, for the purposes of their identity and who they are within their communities as they relate to British Columbia and Canada, they are Maa-nulth citizens in the same way that residents of B.C. can claim to be B.C. citizens. That is their place. That is who they are.
Senator Brown: I understood that. I was more curious about whether they would be protected in foreign countries. I assume that there is protection in Canada.
Mr. Yabsley: They carry Canadian citizenship in foreign countries and have that protection.
Senator Brown: I wish you all well. It has been a painful process.
Senator Campbell: There seem to be concerns about you running out of land. Can you give us some idea about how much land is involved?
Mr. Cootes: Nation by nation?
Senator Campbell: Only the total.
Mr. Cootes: It is approximately 25,000 hectares in total, including the Indian reserves. For our nations, it is approximately 10 times what our Indian reserves were in total land. For Uchucklesaht and our people, we considered long and hard. Our communities gave us direction on something we could live with, move ahead with and generate wealth if managed properly. That is where we received our direction.
Senator Campbell: This is an amazing day. Someone told me that you were reforming your First Nation and I told them that you had never not formed your First Nation; that it was always there, but now it is recognized. Chief Mundy, I have been here for four years, and I will have to admit now to Senator St. Germain that you brought me to tears. It was amazing. Thank you.
The Chair: Thank you very much, chiefs and Mr. Yabsley.
Senator Raine: I wanted to know if Chief Smith had anything she wanted to tell us.
Tess Smith, Chief, Kyuquot/Checkleseth First Nations, Maa-nulth First Nations: Thank you. I am here for the Checkleseth people. We have a long road and a long struggle. Our four frontrunners did an awesome job with their accomplishments, and we are here today to ensure we cross that ribbon. We appreciate all the hard work they have put into the struggle. I am honoured to be here today to sit among the senators of our country.
The Chair: Thank you, chief. Before I say thank you again, is there anyone that would like to speak? Let us give them a hand.
Thank you, chiefs, on behalf of the senators present this evening. We appreciate receiving the information that you have imparted to us on Bill C-41. Your testimony was informative and straightforward.
When I listened to Chief Mundy, and my good colleague here, Senator Campbell, who is a spokesperson for the opposition, shed a tear, I was thinking, how typical of West Coasters — giving, generous and kind. Seeing I am from Manitoba, the friendly province, I figure that it should be mentioned.
I am encouraged, and I think we are all encouraged, honourable senators, to see how optimistic the Maa-nulth First Nations are going forward on this historic day.
Honourable senators, if it is agreed, we will now proceed to clause-by-clause consideration of the bill. Shall we suspend or proceed? We will proceed. Is it agreed that the witnesses —
Senator Carstairs: The witnesses stay.
The Chair: Honourable senators, rule 96(7.1) provides that "Except with leave of its members present, a committee cannot dispense with clause-by-clause consideration of a bill.''
Senator Carstairs: We give leave.
Senator Campbell: Dispense.
The Chair: Dispense? We will dispense and this is agreed?
Hon. Senators: Agreed.
The Chair: Agreed, and it is unanimous. Is it agreed that this bill be adopted without amendment?
Hon. Senators: Agreed.
The Chair: Does the committee wish to discuss appending observations to the report?
Hon. Senators: No.
The Chair: Is it agreed that the bill be reported, without amendment and without observations, to the Senate at the earliest opportunity?
Hon. Senators: Agreed.
The Chair: Congratulations, senators. Thank you, Senator Campbell and all the senators that are here. Thank you again, chiefs, Mr. Denhoff and all of those that participated in this historic day.
(The committee adjourned.)