Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 39 - Evidence - June 12, 2013
OTTAWA, Wednesday, June 12, 2013
The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill C-62, An Act to give effect to the Yale First Nation Final Agreement and to make consequential amendments to other Acts, met this day at 6:47 p.m. to give consideration to the bill.
Senator Vernon White (Chair) in the chair.
[English]
The Chair: I would like to welcome all honourable senators and members of the public who are watching this meeting of the Standing Senate Committee on Aboriginal Peoples on CPAC or the Web.
My name is Vern White, from Ontario, chair of the committee.
The mandate of this committee is to examine legislation and matters relating to the Aboriginal Peoples of Canada. This evening we will examine Bill C-62, An Act to give effect to the Yale First Nation Final Agreement and to make consequential amendments to other Acts.
Today we will hear from three witnesses: the Department of Aboriginal Affairs and Northern Development, the Yale First Nation and the Stó:lō Nation. The Stó:lō Nation will join us by video conference.
Before hearing from witnesses, I would like to ask members of the committee who are present today to introduce themselves.
Senator Dyck: Good evening. My name is Lillian Dyck. I am a senator from Saskatchewan.
Senator Lovelace Nicholas: Senator Lovelace Nicholas from New Brunswick.
Senator Watt: Senator Watt, Nunavik.
Senator Demers: Senator Jacques Demers, Quebec. Thank you for being here.
Senator Seth: Asha Seth, Ontario.
Senator Tannas: Scott Tannas from Alberta.
Senator Beyak: Senator Lynn Beyak, Ontario.
Senator Raine: Senator Greene Raine from B.C.
The Chair: I would like to welcome our first witnesses, from Aboriginal Affairs and Northern Development Canada. They are Greg Rickford, M.P., Parliamentary Secretary to the Minister of Aboriginal Affairs and Northern Development and the Canadian Northern Economic Development Agency; and Jim Barkwell, Senior Director of Negotiations, South, Treaties and Aboriginal Government.
Mr. Rickford, we look forward to your presentation, which will be followed by questions from the senators. Please proceed.
[Translation]
Greg Rickford, M.P., Parliamentary Secretary to the Minister of Aboriginal Affairs and Northern Development, for the Canadian Northern Economic Development Agency and for the Federal Economic Development Initiative for Northern Ontario: Mr. Chair, thank you for this opportunity to address Bill C-62, an Act to give effect to the Yale First Nation Final Agreement.
This legislation is very significant as it is the last step required to ratify this agreement as a modern treaty under the Constitution Act, 1982.
[English]
Negotiations towards a final agreement first began in 1994, when Yale First Nation entered into the BC Treaty Process. The introduction of this legislation marks the culmination of almost two decades of discussions to reach a comprehensive treaty and bring about the bill that is in front of us today.
The agreement provides Yale First Nation with self-government and a greater measure of autonomy, and the agreement brings greater certainty to the ownership and use of lands and resources in the area. It creates opportunities for Yale First Nation, and it provides predictability for continued development and growth in the province.
The Yale First Nation final agreement is the third comprehensive treaty concluded under the BC Treaty Process. The BC Treaty Process, first established in the early 1990s, enables representatives of federal, provincial and First Nation governments to sit down in a spirit of trust, respect and collaboration on a voluntary basis.
All parties then work together to set out a clear, consistent, reliable negotiating path that ensures final agreements are fair, just and meet the needs of neighbouring communities, British Columbians and all Canadians.
[Translation]
The desired outcome is to negotiate comprehensive final agreements that lead to First Nation communities that are: empowered to make their own decisions; able and eager to make the most of land-use and resource rights while respecting the environment; equipped with the tools they need to build renewed relationships with all levels of government, forge exciting partnerships with businesses, and become more vibrant, prosperous and self-reliant.
[English]
I am convinced, Mr. Chair, that the Yale First Nation final agreement will give the Yale First Nation the tools it needs to take greater control of its future and will enable it to contribute to a stronger, more prosperous Canadian economy.
No one deserves more credit for this final agreement than the Yale First Nation Chief, Robert Hope, and his father, the late Chief Lawrence Hope. In particular, I want to applaud them both for the fair and measured approach they took during the negotiations and for their perseverance in never faltering or losing sight of the final goal along the sometimes challenging course of negotiations.
Mr. Chair, some neighbouring First Nations have raised concerns with this agreement. Key accommodations were made in the text of the final agreement in an effort to address concerns raised by two Stó:lō groups concerning fishing rights in the area they describe as five-mile canyon. In addition to these accommodations, Yale First Nation offered two Stó:lō groups a binding agreement, providing for access to Yale First Nation land.
The Yale First Nation proposal contains a number of important elements: access to Yale First Nation land for identified Stó:lō families and individuals without request; an initial term of the agreement of 10 years; provision for a joint Yale First Nation-Stó:lō working group with expertise in fisheries, tasked with implementing the agreement, including agreeing upon additional Stó:lō families and persons who may be granted access without request; renewal terms of the agreement based upon recommendations of the joint working group; and a dispute resolution clause with principles drawn from the Yale First Nation final agreement and other modern treaties.
Under the dispute resolution process proposed by Yale, the parties agree to resolve disputes in a collaborative, non- adversarial atmosphere, first by informal discussion, second by good-faith negotiation and ultimately referring the dispute to mediation when and where needed.
[Translation]
Returning to the key areas covered by this agreement, one of the most important traditions of the Yale First Nation is fishing. The community sits at a strategic position where the Fraser River narrows into the Fraser Canyon. This natural constriction in the river concentrates the flow of migrating fish. As a consequence, the area is rich in a number of varieties of Pacific salmon. The Yale First Nation has fished in this area successfully and sustainably for many generations. In keeping with its tradition of careful stewardship, the Yale First Nation will be empowered to decide who amongst its members may fish in designated harvest areas in accordance with agreed upon allocations.
[English]
Mr. Chair, I want to be clear that the Yale First Nation will only manage the fishing areas for its own members. Other First Nations in the area will reach their allocations in coordination with the Department of Fisheries and Oceans, as they currently do. I would also like to make it clear to this committee that the key fishing area — that is, the Fraser River — is and will remain a public waterway, which will not be owned by any individual interest; rather, it will remain open for use by all authorized fishers.
Another area of the final agreement is Yale's self-government rights. Once the final agreement comes into effect, the Indian Act will no longer apply to Yale First Nation, its lands or members, other than to determine Indian status. The final agreement's self-government provisions will enable the Yale First Nation government to create laws and make their own decisions about matters related to the preservation of their culture, the exercise of their treaty rights and the operation of their government.
For example, the community will be empowered to make laws that govern such areas as kindergarten to grade 12 education, child protection services, Aboriginal healers, and adoption and custody of Yale First Nation children. They will also have authority to make laws to preserve and promote culture and language; to protect and manage heritage sites; to manage public access to those sites; and to designate and conserve cultural artifacts.
[Translation]
Yale First Nation's law-making authorities will operate concurrently with federal and provincial laws, just like other jurisdictions in Canada where Canadians are subject to federal, provincial and municipal laws.
First Nation laws will take priority over federal and provincial laws in matters that are internal to Yale, integral to its distinct culture or essential to the operation of its government, such as laws regulating the administration of Yale First Nation government and management of Yale First Nation lands and assets.
[English]
However, federal and provincial laws will take priority in the event of a conflict in all other areas of jurisdiction. For example, federal or provincial laws will prevail in areas such as health services; public order, peace and safety; buildings and public works; and traffic and transportation.
In a number of jurisdictional areas, Yale's laws must meet certain requirements or standards in order to be valid. Examples include solemnization of marriage, education and adoption. Only federal laws will apply in areas of national interest, such as criminal law, national defence, intellectual property and immigration.
Mr. Chair, it is clearly an agreement that provides the people of Yale First Nation with a strong foundation on which to build a politically stable, economically prosperous and culturally vibrant community. However, do not take my word for it. Look at the record.
Comprehensive agreements such as this one have proven their worth. They bring clarity to the ownership and use of land and resources — clarity that leads to economic growth and development. They empower First Nation communities to make decisions that enrich people's lives socially and culturally, and they lead to renewed relationships between governments that open up new avenues of cooperation, collaboration and development in all aspects of community life.
Twenty-six modern treaties and self-government agreements, which cover more than half our country's land mass, have been ratified and brought into effect. These treaties and agreements have provided the certainty that has enabled many First Nations to thrive. In British Columbia, treaties have equipped Tsawwassen First Nation with the authority to develop land for its industrial, commercial and residential uses, and equipped the five Maa-nulth First Nations on the west coast of Vancouver Island with the authority to govern their land and their resources.
These successes contribute to recent figures that show that self-governing communities increase employment in their communities by 13 per cent and boost participation in the local labour force by 12 per cent. Those outcomes are all important and valuable. Clearly, this bill will empower Yale First Nation similarly, their families and their community to make their own decisions and become more vibrant, prosperous and self-reliant.
[Translation]
For these reasons, Mr. Chair, I ask the honourable senators to adopt Bill C-62.
[English]
The Chair: Thank you very much. Before we go to questions, we received documents from our Stó:lō witnesses, which is the third panel. I am afraid they came in English only, so I would like permission to circulate those documents in English, if no one has a concern about it.
No concerns? Thank you very much. We will go to questions, starting with the deputy chair, Senator Dyck.
Senator Dyck: Thank you Mr. Chair, and thank you for your clear presentation, Mr. Rickford.
I will start with a very general question. It has been 19 years in the works in order to come to this point. Can you tell me what the major barrier was? What is the major barrier, or is 19 years kind of average time in B.C.?
Mr. Rickford: This has been a lengthy process for a couple of reasons. To the credit of all parties involved, there have been matters with respect to a number of communities in the area, on specific areas of land that have been, shall I say, disputed, and they have required some mediation processes that have consumed some of this time. We are happy, obviously, to be at the point where we can finalize this agreement and put Yale First Nation in a position to move forward on the basis of that agreement.
Senator Dyck: Before I follow up on that, I have two short questions. You indicated that the Yale First Nation will no longer be under the Indian Act, yet it looks like status as registered Indian people will still be under the Indian Act. Is that correct?
Mr. Rickford: It is standard under those self-government agreements that that would be the one question that would still be determined by the Indian Act.
Senator Dyck: Why is that the standard?
Jim Barkwell, Senior Director of Negotiations, South, Treaties and Aboriginal Government, Aboriginal Affairs and Northern Development Canada: There are primarily two reasons for that particular circumstance. First, the department is able to be sure, when providing programs and services, what the numbers of registered Indians are. That applies also in a treaty context. Second, from the First Nation perspective, individual members may be eligible for benefits that would apply that are not provided through the treaty process. By having their status retained, they are able to identify themselves and make benefit of these programs.
Senator Dyck: The land that Yale will be receiving will be fee simple land. During the negotiation, is that the standard practice or is that something that Yale had asked, namely, for the land to be fee simple as opposed to band ownership?
Mr. Rickford: It is standard fee simple.
Senator Dyck: It is also standard. Then I will follow up, if I may, with more complicated questions.
The Chair: Can we go second round for that, if you do not mind?
Senator Dyck: Can I start with one complicated one? It concerns the dispute resolution.
You mentioned that one of the major barriers was mediation, that there were other First Nations in the area and that there is an overlap of interest. I think one of the concerns from the Stó:lō was with regard to dispute resolution. What are the dispute resolution mechanisms? Are they part of the bill itself, or are they separately managed by this agreement that you mentioned in your speech?
Mr. Rickford: It is a little of both. This is not a phenomenon. These things arise in the context of these agreements. Most tables have been able to successfully resolve overlap issues with their neighbours on a nation-to-nation basis.
When overlap issues cannot be resolved, Canada offers support to those First Nations for independent mediation to assist them to reach an agreement. In the case of Yale First Nation, extraordinary measures were taken to bring the parties to an agreement, including two mediation processes, the last of which was with highly respected independent mediator Vince Ready, who was acceptable to both parties.
I should add, in the spirit of responding to your time allocation, that, as I said in my presentation, there is a continuing mechanism available for any further disputes in the context of the agreement itself.
Senator Dyck: There is nothing actually in the bill that addresses that continuing? That is what I am getting at. Is there anything in the bill that says there will be some kind of accommodation for competing interests?
Mr. Rickford: There is an agreement that gives force of law for the mediation process that has been contemplated to go into effect.
Senator Dyck: Could you point to a clause in the bill that says what you just said?
Mr. Barkwell: Yes, the bill gives legal force and effect to the terms of the treaty itself, and the treaty has an extensive dispute resolution mechanism and process set out in it. That dispute resolution process, however, applies to the three parties to the agreement. That would be Yale, Canada and British Columbia.
In terms of the overlap dispute and the issues that may remain between Yale and Stó:lō in the future, Yale is able to set out in their law a dispute resolution process that may apply in terms of dealing with access requests from Stó:lō members.
Stó:lō would also have access to the courts, which is another normal process. In addition, Chief Hope provided an opportunity for Stó:lō to participate with him in a memorandum of understanding. That memorandum of understanding, which is separate from the treaty but is offered by Chief Hope to Stó:lō, sets out detailed dispute resolution provisions that are comparable to what is in the treaty itself. That would apply to Yale and Stó:lō Nation if an agreement like that was reached.
Senator Dyck: I have one more short question.
The Chair: I will put you on the next round.
Senator Dyck: It is completely related to this. With regard to the treaty between Yale First Nation, B.C. and Canada, has that treaty been finalized?
Mr. Rickford: That is what this agreement is.
Senator Dyck: Yes, it has?
[Translation]
Senator Demers: Good evening, Mr. Rickford. Your French is excellent.
[English]
Stó:lō representatives, when appearing at the House of Commons committees, spoke of having Aboriginal rights and title that are confirmed by a court. Is this the case?
Mr. Rickford: Thank you for that question. The Yale First Nation final agreement will not provide exclusive — and this will address the law-making authorities first; is that best? Could you repeat the question, please?
Senator Demers: Stó:lō representatives have spoken when appearing at the House of Commons committee of having Aboriginal rights and titles that are confirmed by a court. Is this the case?
Mr. Rickford: The Stó:lō representatives have spoken of Aboriginal rights in the area Stó:lō claimed traditional territories, approximately 1.33 million hectares within this claimed area.
Stó:lō groups have asserted Aboriginal rights and shared territory to the lower Fraser Canyon area. Stó:lō groups have outstanding civil claims in the B.C. Supreme Court respecting their Aboriginal rights and title to their claimed traditional territory; however, no such civil claim has been proven in court.
Senator Demers: Thank you. Should Canada agree to the amendment proposed by Stó:lō groups to the Yale First Nation final agreement?
Mr. Rickford: The Stó:lō treaty associations proposed amendments that would undermine the Yale treaty by putting an unmanageable constraint on Yale's ownership of a significant portion of the agreed treaty settlement lands, including some existing Yale Indian reserves. The opposing views of Yale and Stó:lō have not been reconciled for several decades, including through several recent independent mediation processes.
The requirement for a shared territory agreement would amount to a veto to the treaty by Stó:lō.
Senator Raine: Thank you very much for being here. I am quite familiar with the area. I would like to get clarification, if you do not mind, on Yale as part of Stó:lō, because Stó:lō representatives have referred to the Yale First Nation as being Stó:lō. Is this accurate? What is the significance of their affiliation, the two groups, within the BC Treaty Process?
Mr. Rickford: Thank you for the question. The area of Stó:lō-claimed traditional territory that you are referring to is, as I said earlier, 1.33 million hectares of Yale First Nation land, of which 1,966 hectares is located within this large geographic claim territory. Within the Lower Fraser Canyon area, there are also parcels of land designated to become Yale First Nation land, including Indian reserves that have been held by Yale First Nation for over a century.
The largest reserve, senator, in the Lower Fraser Canyon is held for the benefit of a Stó:lō group band. Stó:lō groups have asserted Aboriginal rights and shared territory to the Lower Fraser Canyon area, including parcels of Yale First Nation land within this area. This area is referred to by Stó:lō as the Five Mile Fishery.
Senator Raine: Was consideration given to carving out the disputed area from the overall treaty, and could that have been done, and could the treaty still proceed?
Mr. Rickford: The BC Treaty Process permits First Nations to self-identify for negotiation of a treaty, and it provides for interest-based negotiations. This arose from specific recommendations of a BC Claims Task Force comprised of the First Nations Summit, Canada and British Columbia. Yale Indian Band is a separate band for the purposes of the Indian Act. The Yale band, also known as Yale First Nation, has self-identified as a separate entity from Stó:lō and entered the BC Treaty Process on this basis. Canada respects the decision of Yale First Nation to self- identify.
Senator Raine: You did not really answer the question. I know they are very difficult situations, but is it better to settle it now and then have it go to the courts if necessary?
Mr. Barkwell: I think the parliamentary secretary has responded to a significant portion of your question. However, in terms of the specific suggestion that perhaps those lands could be carved out, I would point out to the committee that nine of the sixteen Yale reserves are located in that Five Mile Fishery canyon. It would be untenable, I think, for Yale and not an appropriate negotiation stance to put forward that their own reserve lands would be taken out of a final agreement that would be negotiated with them. On that basis, we had to seek a balance between the interests that were expressed by Stó:lō and the Yale interests in concluding a treaty that included their own reserve lands and some additional provincial Crown lands in that area.
Senator Raine: I understand that. For the people who live there, I think one of the concerns is actually controlling the access and putting in place a mechanism to allow people who have the right to go there, which they recognize, and to have free access to the land they have used, but to still have it be looked after properly by the people who live there. Is this one of the reasons why the treaty is so important?
Mr. Rickford: Certainly one of the most important parts of it, to the extent that there have been ongoing, if not protracted, issues and disputes around these specific matters, which in our view have been dealt with.
Senator Watt: I will try to limit my questioning as much as possible so that we do not go on all night.
Thank you for your presentation. I would like to get back to the point of the dispute resolution mechanism you talked about. If I understood correctly, you said that the dispute resolution mechanism is a memorandum of understanding. It is not part of the treaty; rather, it is outside of the treaty and speaks to the treaty. Am I correct?
Mr. Rickford: And it has been offered by Chief Hope.
Senator Watt: In terms of the dispute resolution mechanism, if there are grievances between the beneficiary of the settlement and the Crown, would they have a separate dispute resolution mechanism only to deal with a lack of implementation of the agreement, or is that absent? I want to be clear on that.
Mr. Rickford: If I understand your question, implementation and dispute resolution and overlaps —
Senator Watt: I am not talking about the overlap issue. I am not talking about the other tribal council. I am talking about the beneficiaries of this agreement. Do they have their own dispute resolution mechanism?
Mr. Rickford: Yes, they do.
Senator Watt: Separate from the one that is related to the other interested groups?
Mr. Rickford: To the Stó:lō. That is correct.
Senator Watt: Is that legally binding? It is not part of the treaty. How does it become legally binding? You made reference to the court. I want to know whether or not it is legally binding.
Mr. Rickford: You are referring to the memorandum of understanding?
Senator Watt: That is correct.
Mr. Barkwell: What you are referring to is an offer that was made by Chief Hope to the Stó:lō representatives to conclude a memorandum of understanding. In that offer, which he sent to them in January of this year, he identified the key elements of that, and in that he references the binding nature of the MOU.
I remind the committee that Stó:lō have not taken this up yet, but he is proposing that the parties agree that the MOU is binding and shall have, in effect, an initial term of 10 years, which could be renewed in accordance with the working group that would be set up.
The answer to your question is that the proposal from Yale is that it be a binding agreement.
Senator Watt: You partially answered my question, but you did not answer the legally binding aspect. How is it legally binding if it is a separate text, a memorandum of understanding, meant to deal with the other interested groups?
Mr. Barkwell: It would be up to the lawyer —
Senator Watt: From what I understand, from what you are reading, this is more of a proposal rather than a legally binding text.
Mr. Barkwell: If the agreement were to go ahead and Stó:lō were to agree with Yale to proceed with such an agreement, each party would have legal representation who would draft the terms of the agreement carefully together to ensure that it was a binding agreement, since that is the intent of the two parties that would be entering into the agreement. It is not the same stature of an agreement as what you have today as part of this bill, which is a constitutionally protected document. Nonetheless, the intention is that it be legally binding, as agreed to and set up between the two parties.
Mr. Rickford: If I may add to that, senator, there are some really good reasons for that, as a lawyer myself who has prepared a number of memorandums of understanding. They often form the basis, as I am sure you know, for legally binding agreements. In this case, the MOU would have that effect for an initial term, as contemplated by Yale First Nation, so that the working group that has been proposed could in fact modify or reshape that as they saw fit.
The parties would agree to renew the term of the MOU in accordance with recommendations that come from the working group, which is somewhat unique but a good approach in terms of addressing any disputes that may arise over the course of time.
Senator Watt: I do not think I will drill you anymore on this. I think we can agree to disagree on this point.
Senator Seth: Thank you very much for your good presentation and for being here.
You have said that under the dispute resolution process proposed by Yale, the parties agree to resolve disputes in a collaborative, non-adversarial atmosphere, first by informal discussions, second by good-faith negotiation, and ultimately referring to the dispute resolution where needed. What happens next? Is there any involvement of the federal government next the problem is not solved through mediation? I would like to know more about this.
Mr. Rickford: The penultimate goal, as I said in my presentation, is for the resolution of any disputes to occur within the context of the binding memorandum of understanding and in the spirit of self-governance to occur as between nation to nation.
Senator Meredith: Thank you, Mr. Barkwell, for appearing before us today, and Mr. Rickford, thank you for your presentation.
One of the buzz words that keeps coming back, as I have been part of this committee before dealing with the First Nations people, is consultation. In your opinion, do you feel that there has been adequate consultation between both groups to come to this agreement, or is there anything that we as a government could have done better to gain more of an input from both groups as we come to this agreement? I have a second question as well.
Mr. Rickford: On the matter of consultation, to be clear, senator, we are not per se talking about the duty to consult as it might be legally or as a policy matter understood in other pieces of legislation that the federal government is involved with.
The intent of this process — and the BC Treaty Process itself I think has done a great job — is to have the parties involved in a process that understands and historically reconciles their respective lands and, as we have said through questions from both sides, undertakes over a process that I would call consultative to the extent that they have either been in mediation or in negotiation through the treaty process to understand what the final agreement would propose. In this case, because there have been disputed lands, appropriate mechanisms must be understood to resolve any disputes, as I said earlier to a question, that have arisen from time to time because of overlap between First Nations.
Senator Meredith: Thank you. What are your fears of this legislation being challenged in the courts? If it is challenged, what is your strategy to move it to implementation, seeing that it is two years out from the date that has been set for its full implementation?
Mr. Rickford: That is a good question. We hold a lot of hope out for this agreement not only to be finalized. Obviously, it has already been through the standing committee in the other place. We feel there are mechanisms in place for dispute resolution to occur and the accommodations therein, so we would encourage the parties to take up those options. I think they are flexible, they are dynamic and they accommodate for concerns that were raised by other groups, in particular the Stó:lō groups.
I guess the shorter answer to your question would be that it could end up in court, but I think for our purposes it was important to get to the point where we had a final agreement that respected the BC Treaty Process that is well- established, does great work and works with the First Nations to bring their historical grievances over land and its resources to a final form agreement for their benefit and their use.
Senator Meredith: You talk about options. Can you elaborate for me on those options that you said are available between those two groups?
Mr. Rickford: We were alluding, in a technical manner, to the questions raised by Senator Watt that a memorandum of understanding would have legal binding force as between Stó:lō and Yale, that a working group would be put in place to identify issues as they arose. Rather than a sort of permanent legally binding agreement, if you will, the memorandum of understanding would leave open options or issues raised through a joint working group for the memorandum of understanding, perhaps to contemplate new sets of circumstances or a set of circumstances of a dispute of any kind.
Senator Meredith: You mentioned something about the dispute resolution. Regarding the speed with which we are, again, asked to adopt this bill with respect to the status quo of the fishing season — there has been some talk around that — what happens between our passing this bill and its becoming implemented? Is the status quo maintained, or is there some sort of provision to be made right now to allow Stó:lō to have access to Yale First Nation land in terms of them having the ability to go and harvest, and so forth? Can you elaborate on that?
Mr. Rickford: That is a great question, senator. I will turn it over to Mr. Barkwell for that particular matter around the time sensitivities with respect to fishing.
Mr. Barkwell: There are a few aspects to your question that I will respond to. I think it may be important for committee members to understand that the difference of view between Yale and their Stó:lō neighbours is long- standing. It has existed prior to the treaty process and continues to this day. Every year when fishing season comes along there are potential issues between the groups. The fishery is managed by the Department of Fisheries and Oceans. They are the ones who set the allocations and establish who fishes where and when and how that salmon fishery will take place.
This year will not be any different from other years. The same rules would apply for Yale and for Stó:lō as have applied for the many years in the past. When the treaty comes into effect, there are provisions in the treaty and in the harvest agreement that set out slightly different rules that would apply for Yale members. The Yale allocations that would flow from the treaty are based on abundance, which is a percentage of the fishery; and in terms of the food, social and ceremonial component, they are capped at a maximum. This is designed specifically to ensure that there will continue to be a fishery for all in that area of the Fraser River.
We also made certain in our land selection process that a boat launch area would remain open to all of the public, because it was not offered to Yale as part of their salmon land package, so fishers who use and want to access the public waterway which is the Fraser River will have access to that waterway.
The access provisions that we have also included in the treaty as our best effort to accommodate the concerns that Stó:lō have are intended to provide reasonable access on and over Yale lands for those First Nations fishers, primarily Stó:lō, and others who wish to access the river and who are acting safely and responsibly in accordance with criteria that have been established in the treaty.
The Chair: A couple more questions. We are already over and we have two other groups following this one. I will let the questions continue, but they will be succinct and the responses as well, please.
Senator Tannas: Quickly on Senator Watt's question, you mentioned that the MOU that has been offered would be binding. It would be binding in the sense that the parties would be bound to enter the process that is there for dispute resolution, but there is no binding outcome in that dispute resolution process, correct? It goes to mediation, but mediation could ultimately fail. Is that correct?
Mr. Rickford: To be clear, it does not go to binding mediation. The nature of this, as I alluded to earlier — and to be abundantly clear — shall have initial effect for a period of 10 years from the effective date of the Yale First Nation final agreement.
The parties would agree, in signing, to renew the term of the MOU, but it would be in accordance with the recommendations of the working group, which, over the course of time, could and perhaps would identify other issues.
As I said before, it is a dynamic kind of agreement, which is why it remains as an MOU and not a legally binding agreement that is the next step of an MOU in most legal processes. The parties have rather smartly developed a process to deal with ongoing matters.
Senator Tannas: I want to get this clear: If Stó:lō signed on to what has been proposed, would there ever be an outcome binding on both parties that would come from the process being proposed? Could there ever be a binding resolution to a dispute?
Mr. Rickford: Again, senator, it may evolve to be that, but the initial MOU for 10 years would give the working group an opportunity to resolve any of those issues that might arise.
Senator Tannas: Thank you.
Mr. Barkwell, you have had a ringside seat at the mediation that occurred. I understand that at the house committee hearings, the Stó:lō representatives said that the mediation collapsed. Is that what you witnessed?
Mr. Barkwell: I should clarify that I did not have that ringside seat that you referred to. It was conducted by Mr. Ready as an independent mediator. He did not involve me or the provincial negotiator as part of those proceedings. He acted to facilitate and bring together Yale First Nation and Stó:lō representatives and to seek a solution.
The conclusion he shared at the end of the six-month process of engaging those two parties is that despite some progress and efforts to move forward towards the kind of agreement that Chief Hope subsequently offered, he determined there were irreconcilable issues in terms of the ownership aspect of the land in question. That was the ultimate outcome from the mediator.
Senator Lovelace Nicholas: Welcome.
Both Yale First Nation and Stó:lō entered into the treaty negotiations early in the B.C. process but included the Five Mile Fishery in their statement of intent lands.
Why did Yale First Nation get the land?
Mr. Rickford: Thank you, senator. To be clear, the Yale First Nation agreement describes Yale First Nation's right to harvest fish and aquatic plants for food, social and ceremonial purposes in a defined geographic fishing area or areas.
There were allocations for five species. The final agreement describes a process to negotiate allocations for other species, should a need arise in the future. It does describe the Yale First Nation's role in a cooperative planning and management of the fisheries and related matters with respect to your question.
Canada, in this case, and British Columbia do retain authority to manage and conserve fish aquatic plants and fish habitat according to their jurisdictions.
Senator Lovelace Nicholas: If there were laws created by Yale First Nation that would interact with provincial and federal laws, in the event of conflict, which laws would prevail?
Mr. Rickford: I laid out in my presentation what the agreement itself contemplates and then what, if any, areas would be the purview of the federal and provincial laws. Federal and provincial laws would take priority for areas such as health services, public order, peace and safety, buildings and public works, traffic and transportation. I do believe I mentioned that the laws of Yale First Nation must be consistent and meet certain requirements and standards in a couple of key areas, one being the solemnization of marriage, and the others being education and adoption.
In terms of specific federal laws prevailing, they would only prevail in areas of national interest. They would include criminal law, national defence, intellectual property and, of course, immigration.
Senator Lovelace Nicholas: They will be self-governed and they still have to abide by other people's laws?
Mr. Rickford: Well, the federal and provincial laws continue to apply in those specific areas for obviously important public policy. I think we would all concur about those interests, but there is no question that the agreement itself is intended to serve in this case Yale First Nation with a considerable tool, not just in terms of self-identity but also governance and the benefits that flow from that, not the least of which I would think would include more vibrant, healthy economic conditions for the community to operate under.
Senator Lovelace Nicholas: Thank you.
Senator Watt: Even though you mentioned the fact that the jurisdictional aspects of it remain within the federal and also provincial in terms of administering the fish, that means that they do not really have a co-management agreement. It is not part of the treaty.
Mr. Barkwell: Did you say eco management?
Senator Watt: No, co-management.
Mr. Barkwell: Chief Hope can speak to this more when it is his turn, but Yale has a good relationship with the Department of Fisheries and Oceans; it is a very collaborative approach in terms of managing the fishery together. The treaty sets out a process of engagement between Yale representatives and Fisheries and Oceans representatives so it can make joint recommendations on how the fishery will be managed in any given year. It must be approved by the Minister of Fisheries and Oceans, but the process is collaborative between Yale representatives and the Fisheries and Oceans representatives.
Senator Watt: That is similar to co-management.
Mr. Barkwell: It is a similar process.
The Chair: Thank you very much. For the final question, Senator Dyck.
Senator Dyck: I am fine, thanks.
The Chair: I want to thank the witnesses for appearing. Sorry for keeping you.
On our second panel, we welcome Yale First Nation, represented by Chief Norman Hope.
Chief Hope, we look forward to your comments.
I would like to remind senators that we have a third witness joining us by video conference immediately afterwards. To maintain our schedule, or try to catch up a little bit, I would ask that both questions and answers be focused and concise.
Chief Hope, I know you have a few words to begin. Go ahead, please.
Norman Hope, Chief, Yale First Nation: Thank you, Mr. Chair. It is a real pleasure to be here. I thank senators for having me as a guest to your committee. It has been a real marathon, the last 17 years.
I would like to carry on from the previous speakers, Mr. Barkwell and Mr. Rickford. There are a couple of key issues that I would like to address tonight. One of them is that we are not Stó:lō people. We are not a Stó:lō Indian band. The other issue I would like to address is the geography of the area, and the area that is causing a lot of concern for my neighbours, the Stó:lō people.
Starting with the issue of whether I am a Stó:lō person or whether the Yale Indian Band, the Yale First Nation, is a Stó:lō Indian band, I say no, we are not. Over the years, we have done some research on this term, "Stó:lō," and found there to be many different versions of that term. Generally, it means "river" or "people of the river."
There are different ways of spelling it. Formerly, it was spelled S-t-o-l-l-a, or Stalo was another term. Another pronunciation is STA-LOO, with two "O's." There is another term for people downriver from us. In the native language, it is called Achinko, meaning "people downriver."
From the research that we have done, there are some groups called the Upper Stó:lō, and then there is the Lower Stó:lō. Different historians determined the Upper Stó:lō and Lower Stó:lō. There was another group called the Tait, determined by an individual with the last name of Tait. At least in his view, the Yale people might have belonged to this Tait group, although I am not so sure about that.
The most recent one I have seen, and the term they use now, is spelled S-t-o — and it has a little line on top of it — l- o, with another line and a dot on top of it, or something to that effect. That is a recently fabricated term.
In the 1970s, the Stó:lō created that. I do not know why. During the 1970s, the Yale Indian Band was grouped together with a number of other Indian bands in the Fraser Valley for administration purposes. Indian Affairs grouped us in with them, as at the time we had no capacity. We are a small group. We could do very little administration.
We were grouped in with the Stó:lō. At the time, I think it was the Chilliwack Area Indian Council. There were about 24 Indian bands that this group administered — housing money, infrastructure money and that sort of thing. We have long since broken away from that group, and they broke up a lot as well. A couple of times they got back together, and then they broke up again into two major groups: the Stó:lō Tribal Council and the Stó:lō Nation.
There are other groups like the Union Bar First Nation or the Peters Band, the Chehalis — who are not Stó:lō group people. There are several of them. Shxw'owhamel, next to the Peters Band, have broken away from the Stó:lō Tribal Council just this past year.
When the Stó:lō grand chiefs suggested they represent 10,000 people, I would question that. I do not believe they do.
The term "grand chief," I do not know what authority they have. You take this community called Scowlitz or Sioux Warriors, which is up by Cultus Lake.
The Chair: Chief, I apologize for interrupting, but we would like to focus on the positive aspects rather than a potential debate. I can assure you that our goal is not to debate between Yale and Stó:lō. I do think you have some positive aspects in terms of what this agreement will mean to you. If you do not mind, could I ask you to focus your comments around that so we can ask questions pertaining to that?
Mr. Hope: I would be happy to redirect my words here.
With regard to the geography of the place, the area we are dealing with is right in the mouth of the Fraser Canyon. There are areas that we have fished since the beginning of time, and then the reserve was put there. We have continued occupancy and we have looked after that territory since the beginning of time. We have heard all the war stories that are passed from generation to generation.
The area we are talking about is not a big area. It is not five miles long. It is close to an area that we call Five Mile Creek.
As to the future treaty settlement land, it is a lot smaller again. Five Mile Creek, Sawmill Creek, is somewhat of a boundary between Yale and the First Nations neighbours to the north. From there, as you go downstream, there is maybe a kilometre or so of treaty settlement land. Then there's a gap, I guess, of Crown land. You carry on downstream and then you get to more treaty settlement land and small islands in the Fraser River. You come downstream further and then there is a large gap between the Yale First Nation treaty settlement lands. That makes the area in dispute even smaller. The Stó:lō people come and fish and camp on the land, but their traditions are changing. There are not so many people who come up and visit — maybe half a dozen camps. It is not 10,000 people wanting to access Yale First Nation treaty settlement lands. It is more like five or six families. We did a study on this in the past year so we know the area. I want to make sure that you understand that issue. It is not a large area, and it is even smaller because there are a lot of gaps in the outlying area.
There are gaps that we could not negotiate for because we are in the Fraser Canyon. There is the high watermark to the low watermark, which we did not negotiate for and could not. All of a sudden, you are at the CN rail, which is steep. They carved out the CN or the CP rail. It gets steep again and then you get to the TransCanada Highway. There is no land to be negotiated for in places like that. There are large stretches of the river that are shaped like that and belong to no one, but there are still trails down to the river that people can use to get to the river and exercise their asserted Aboriginal right.
Another thing that I want to ensure you understand is that the Yale First Nation is not going to put a gate across the Fraser River. No one can do that. We did not negotiate for the river, either. We are not the gatekeeper. There will be many Stó:lō people who do exercise their Aboriginal right or asserted Aboriginal right. They launched a boat at Yale, a public place. Again, we did not negotiate for it. We are not stopping these people from doing what they like to do and exercising their right to catch fish. We would like to work with them. They jump into a high-powered boat and go up into the canyons and set their gill net. They tie it to the banks of the Fraser Canyon on land owned by the province or by the Crown, I guess, not by the Yale First Nation. There is no way we can stop them or would try to stop them from exercising their Aboriginal right. We would only do that in a case where they are not conducting themselves in a proper manner — that is, not abiding by a few simple rules that we may have in managing our land. As a government we have to govern, and part of that is managing the land.
It is very important that you understand that this not a large area and there not a lot of people. I really believe that it is possible to come to an agreement with these people, who are my friends and neighbours. I believe we can do this without getting into any violent situations. If these grand chiefs continue to threaten violence, then I would say it would become an RCMP matter. They better watch them, follow them around and make sure that when they do come up to Yale they are not planning to do something wrong or against the law.
It is an RCMP issue, but I am willing to work really hard to try to get an agreement with the Stó:lō groups and with people as to how we can live together. That is my goal. I know it will be difficult, expensive and time-consuming, with lawyers for them and lawyers for us. To make a binding agreement would be difficult, but I am prepared to work toward it. They have 10,000 people to bind to an agreement; I have maybe 150. I have already done this. I have already bound the Yale people to the treaty agreement.
I will tell the Stó:lō let us go to the table and work this out. They will not be part of the Yale treaty as they propose. That is just not the way it works. They have every right to negotiate a treaty as Yale did. We were successful at it. We remained at the table; some of the Stó:lō did not. They left the table. Some stayed, but that is just the way they do business.
Do I have more time?
The Chair: We could move into questions if you would like, chief.
Mr. Hope: Okay.
The Chair: You can add something again at any point in time.
Senator Dyck: Thank you for being here, Chief Hope. I was looking at the bill to give effect to the Yale First Nation final agreement. We do not have the actual agreement itself in front of us. I was looking at the binder, and one of the first things that came to mind is that in your agreement you have agreed to modify your rights.
Could you explain to us what that entails? Normally we talk about there being section 35 rights where you inherit Aboriginal and treaty rights. What have you given up to enter into this treaty?
Mr. Hope: As I understand it, "Aboriginal right" has been defined through the treaty negotiation. We will now have a treaty right as opposed to an Aboriginal right. There is a slight difference. That is generally how I find it.
I do not really think we gave up anything through this negotiation. I once talked to another group of people from the Peters Indian Band and with their legal counsel during the presentation regarding the Yale treaty, our treaty in general. They asked what was wrong with doing a treaty. I could not think of a single thing and neither could the legal counsel. I do not believe we gave up anything.
Senator Dyck: The information we have says that the Yale First Nation final agreement can be amended to accommodate the rights of other Aboriginal peoples. The final agreement stipulates that the provisions of the final agreement can be altered, replaced or renegotiated where a court finds the final agreement adversely affects the right of the other Aboriginal people, for example the Stó:lō.
Does that mean that, if the treaty passes, this passes, and the Stó:lō are still unhappy, there is something in your final agreement that would allow the final agreement to be modified to accommodate the Stó:lō?
Mr. Hope: No, only if the Stó:lō or another group were to prove Aboriginal rights to the area that we negotiated. Then, by all means, we would go to the table and adjust the treaty to accommodate that. They have to be proven rights, not asserted rights.
Senator Dyck: It would be a court decision, then.
Mr. Hope: I would think so.
Senator Raine: Thank you. It is good to see you again.
In January, you proposed a 10-year renewable agreement to the Stó:lō groups for access to the Yale First Nation land.
Can you describe some of the higher-level ideas that you included in that proposal, and can you outline some of the ways in which your proposed agreement may reduce the potential conflict with the Stó:lō?
Mr. Hope: In an attempt to make it look attractive to the Stó:lō people, I suggested a working group with Yale people and Stó:lō people — some from the Stó:lō tribal, some from the Stó:lō nation. Each group would have technical people, people who are familiar with the fishery and familiar with the outlying land and the area around the land and familiar with the people. I really thought that a group like that could make a lot of progress toward an agreement.
When they have people at the table trying to work out an agreement, I do not think at the same time that they can go out and do something totally different. They threaten violence every year. While they are at the table I do not think they will continue to threaten violence. I would expect them to respect the people at the table. I do not know if that helps.
Senator Watt: I just have one question. You know that you will have to live with the agreement and you will have to be in charge of the implementation of it. For that reason, I congratulate you.
Regarding this treaty that you have with the Crown, government representatives indicated you no longer fall under the Indian Act but that you fall under this particular agreement, which is a treaty, I believe. You said you are happy with that. Is this treaty flowing from section 35? Is it coming down from the constitutional rights in section 35, or is it independent altogether?
Mr. Hope: I am not a lawyer. It will be difficult to answer that.
Senator Watt: I understand; thank you.
Senator Lovelace Nicholas: This requires just a yes or a no answer. Was this a take-it-or-leave-it agreement?
Mr. Hope: I would like to answer "a little more."
Senator Lovelace Nicholas: Okay.
Mr. Hope: No. We negotiated in good faith; so did Canada and B.C. It was a hard, lengthy and expensive negotiation. We believe we pushed Canada and B.C. to the limit. As far as their mandate goes, it was acceptable to the Yale people. We ratified it. We think it is a good deal. Of course, everyone had to give and take, but I believe it is a good deal for our people, and we overwhelmingly accepted the deal. We were not put in a position of take-it-or-leave- it.
Senator Lovelace Nicholas: Congratulations. Thank you.
Senator Beyak: Thank you for coming here, chief.
You mentioned that if the Stó:lō or any other group was not good stewards of the land, if they did not manage the fishery properly, that might be a problem. How would you handle that? Do you have your own police force? Would you call the RCMP, the province? What would be the solution?
Mr. Hope: We are not a large community. We do not have a police force. We would rely heavily on the RCMP and the Department of Fisheries and Oceans. We make the laws. We expect the RCMP to enforce them and also the Provincial Court to try them. We certainly would not have a court in place.
For management, the Department of Fisheries and Oceans is responsible for fish and fish habitat. First Nations are working closely with them, including the Yale First Nation, on the same group, in a committee like this. The Stó:lō have several representatives, as do the Tsawwassen, the Musqueam and DFO officials. I expect the fishery to be well managed. It will take two governments, at least in the Yale area, at two levels: the Yale First Nation government and the Department of Fisheries and Oceans, on behalf of the federal government. They manage the water, the fish and the fish habitat. They have no jurisdiction for managing the land, especially the Yale treaty settlement land. With the two governments, we can set up a well-run, well-managed, well-monitored, well-enforced fishery and make it an enjoyable fishery with no violence, I hope.
The Chair: We look forward to being invited for a fishing trip, chief.
Mr. Hope: You have an open invitation.
Senator Demers: Thank you for being here, Mr. Hope. We talked a bit about hockey before the game as you are a hockey fan.
If the Yale First Nation final agreement bill is not passed, what impact would this have on the Yale First Nation? When I hear your answers, there is still some work to be done, if I am correct; right?
Mr. Hope: Yes.
Senator Demers: What is your thinking on that, sir?
Mr. Hope: It would be a great let down, but nothing will change dramatically until the effective date, which is 2015, so we go about our daily lives as we do now.
I cannot see a great change, but it would be a great letdown because we are working with and talking to many joint venture people who want to work with us. We are looking forward to the funding that will help with economic development and are looking forward to getting away from the Indian Act. I have heard the term — no disrespect to anyone here — that Indian Affairs move like a glacier. After 34 years of being chief, I want to get on and self-govern. If it did not move ahead, there would be a great disappointment.
Senator Demers: I noticed that you seem to be a very sincere man; I could sense that. You are not doing this for yourself; you are doing this for your people. I can see, when you say "disappointment," all the years you have worked. Do you really sense now that this is it, this is the time and we are not going to look back any more? I can see it is not for you as much, with all due respect; as we gain in age we plan things for the next generation, even though you are 155, 160. Are you at the point right now in your mind of saying, "Okay, we have it," or is there still a bit of hesitation?
Mr. Hope: I am a bit concerned, but yes, we are just about there. In earlier years of negotiation we considered this to be a fish treaty because we relied on fish and we negotiated for fish. Fish is our life, but as we went along it became more and more clear that this is a treaty for the young people. We have young people in the office working with us. We had young people throughout the negotiation, at very high-level negotiations, doing a fine job. The young people in the office are in the transition process and, therefore, will be in the implementation process. They will be working with people of their own age, I would think. I am going to step aside here just as soon as I can.
Senator Demers: Thank you so much.
The Chair: We have a number of people who would like to ask questions, so let us keep them crisp if we can.
Senator Meredith: I concur with Senator Demers in terms of your sincerity and the fact that you are transitioning and you want to see this agreement go forward for the betterment of your people.
One of the questions that I have is with respect to the youth and how are they being engaged with the opportunities for economic development. What programs do you have in place to ensure that these businesses are able to get off the ground and be maintained so that there is that successful plan for the future?
Mr. Hope: We have a group that we call the economic development committee that has been working somewhat with little funds but looking forward to some settlement dollars and economic development money. With this committee, the ambitious young people on the board are already looking forward to using the natural resources in the area that will be ours.
We have advisers, accountants and lawyers. We feel comfortable that we can provide work for many of the young people. We had two graduates this past year. We had a huge ceremony for them the other day. We are proud of the young people, and they are ambitious. They can see that there could be something new happening within the community. I should stress that our neighbours, the non-Native people, are anxious as well. We grew up with them. Many of them are the ones with the equipment, where we have none, so we have to work together with our neighbours. It is exciting times for the elders right down to the younger people.
I want to mention that several years ago in Victoria, with Christy Clark and Minister Pollock, the treaty was ratified in the legislature. We had two or three speakers from the community and one little guy, Chief Robert Hope, about 15 years ago who said, "Let's make a deal" between B.C. and Canada. Everyone really laughed. I say that the young people are really interested in this. We consulted with the people on every chapter, some many times on a monthly basis for many years. The young and old are well aware and anxious.
Senator Meredith: What is the projected value of this in terms of the economic growth within your First Nations? Have you quantified it in any way?
Mr. Hope: I have, but a large part of the settlement money will go towards the loan we took out for the negotiation.
Senator Meredith: In terms of the commercial fishery and so forth, what are the projected revenues to be generated by having more access to other partners that you are bringing in? Have you quantified that at all?
Mr. Hope: Not at all, not myself, but I am sure the adviser would have some numbers on how he will help us work through this and recommend.
Senator Tannas: On the potential hydroelectricity project, which I assume would be one of those run-of-river kinds of projects, as a result of this treaty would there be any different approval process for you with provincial governments, federal governments, et cetera, and your partners, as a result of the treaty?
Mr. Hope: Not yet. We negotiated the amount of water that we hope to harness to create hydro power, but we still have not got any indication from BC Hydro that they will buy the power yet. If the federal government ratifies the treaty, which B.C. already has, and this comes into effect, hopefully BC Hydro will work with us a little more closely to do that. We use the expression of, "We bought a new fridge but have nowhere to plug it in."
Senator Tannas: Sixty-eight per cent of your band members voted in favour. My understanding is that if someone did not show up to vote that was a no.
Mr. Hope: That is right.
Senator Tannas: How many actually voted no?
Mr. Hope: I do not have those numbers right off the top of my head. It was an interesting time.
Senator Seth: Thank you very much, Chief Hope, for giving us this information. I believe my question is a repeat of Senator Tannas' question, but I would ask this: What resource development opportunities do you foresee in this treaty? How will this opportunity positively affect the Yale First Nation? Can you explain that?
Mr. Hope: Positively; I really hope that it will provide jobs and work closely with our neighbours, the Fraser Valley Regional District and the Town of Hope, and that our standard of living will be increased. I was always hoping for streetlights and such things as other communities have.
Senator Seth: How would this treaty affect the new generation of the First Nation? How do you see that? What would happen?
Mr. Hope: I am sorry; I did not hear the question.
Senator Seth: How will this treaty affect the new generation? How would they feel? What would happen then?
Senator Meredith: How will it affect the young people?
Mr. Hope: I am really hoping that through a better standard of living for the parents there will be a better standard of living for the kids, and therefore they will stay in school longer. By that I mean better living conditions. We do have some poor people who go to school hungry. We hope to change that by improving their standard of living and providing jobs and better training programs and better programs all around for everyone. That has to improve the conditions for the younger generation so they continue their education. That is my hope. I can see it unfolding in that manner.
Senator Raine: I would like you to explain again how the access will be provided to those families who have traditionally used those fishing sites. Will they feel welcome in your community?
Mr. Hope: Through the past year I have been in mediation with the grand chiefs and their lawyers and advisers. At the same time, while I was not trying to undermine the chiefs, I found it necessary to meet with some of the grassroots people who I know were concerned about the treaty. We came to a minor agreement, which I called an MOU based on friendship and respect, where they agree to some terms. It is an MOU. We agreed to allow them access.
We met with elders, and extended families, and I have told them that I can see their family fishing in that very same place for generations into the future. It should not change things but make it safer for them. I plan on meeting with a larger community that has a dry fish committee. Several families in that community come up to Yale and dry fish. We will work together with them. We will meet and talk about things and continue with relationship building. We have a good relationship now. It will only get better. I can see it will be a safer place to be in the future.
I think that covers it.
The Chair: Thank you very much for being here tonight, Chief Hope. I know you travelled on short notice. I appreciate your time and I appreciate the passion you showed this evening.
For our third panel, we welcome, via video conference, Grand Chief Joe Hall, President, Stó:lō Nation. He is accompanied by Jean Teillet, Chief Negotiator, Legal Counsel.
I apologize for being late. It is not typical of government to run late, but I am afraid tonight we did. We do look forward to your presentation, and I will let you proceed at your leisure.
Joe Hall, Grand Chief, President, Stó:lō Nation: Thank you, Mr. Chair. I trust everyone can hear me?
The Chair: We can.
Mr. Hall: Good evening, and thank you for the opportunity to address the Senate standing committee. Given the shortness of our allotted time, I will be extremely brief and to the point.
The Government of Canada is on the cusp of bringing into law the Yale treaty, which will unquestionably infringe the rights of thousands of Stó:lō people. This in itself completely violates one of the most fundamental and critical principles of the treaty-making process in that no treaty is to be ratified by government until there is a resolution of any and all overlapping or shared territorial disputes.
You should be asking the government, why is it perpetrating this fundamental breach? The Yale First Nation is without a doubt a Stó:lō community, entitled by virtue of their collective rights and title to enjoy the area known as the Five Mile Fishery. The evidence is undeniable. Unfortunately, their proposed treaty will grant them constitutionally protected authority to gate-keep an area that has for thousands of years belonged to all Stó:lō.
Government senior treaty negotiators, in their zeal to complete this treaty, would have you believe that best efforts were made to resolve the shared territory question. I am here today to inform you that that is far from the truth.
The government appears to have convinced itself that it has done everything it can to resolve this issue. Remarkably, it has come to the conclusion to roll the dice and move ahead despite the obvious and clearly volatile potential. We are truly disappointed with both Minister Bernard Valcourt and the local MP, Mark Strahl, for their lack of effort to directly engage in this serious issue.
We have exercised and participated in every single opportunity that was available to us. We followed every rule and made countless submissions over the many years to government, which appear to have been totally ignored.
The Yale First Nation refused to negotiate at the sessions coordinated by the BC Treaty Commission and was inflexible with the federally appointed mediator, Vince Ready. Yale's behaviour at the consultation table has everything to do with the fact that Yale already had obtained initial approvals from the government. That by itself removed any notion of bilateral consultation. Therefore, the consultation process was effectively contaminated. I believe this was reflected in Mr. Rickford's comments as well when you questioned him about consultation.
In essence, this means that the first-to-the-post mentality has prevailed. I belong to the Stó:lō Xwexwilmexw Treaty Association, made up of seven Stó:lō First Nations, which are in treaty negotiations today because we believe there is promise in achieving a treaty.
Our statement of intent includes the Five Mile Fishery. The difference lies in our approach. We respect the collective rights of the Stó:lō and the history of the canyon, and we sought to establish the Five Mile Fishery zone as a protected area where all Stó:lō, including Yale, could continue to exercise their rights in perpetuity. We have been in the treaty process as long as the Yale First Nation has.
Clearly, one of the astonishing flaws that we have encountered in this process is that government has no interest in history when it comes to the treaty-making process. The Stó:lō visited with many of you in the Senate and as well with members of Parliament to educate and explain our concerns. We did this at the behest of our communities, which demonstrates our desire to achieve a resolution at the negotiating table.
A recent statement surfaced at the house standing committee suggesting that to not proceed with the Yale treaty would amount to providing a veto to the Stó:lō. This is absurd. We have never asked for a veto. In fact, we encouraged Canada to proceed with the Yale treaty, but carve out the Five Mile Fishery until the dispute is resolved. The government has done this before in other parts of Canada with satisfactory results. Canada and B.C. are offering lands to Yale that rightfully belong to all Stó:lō. This is tantamount to theft.
The Stó:lō are land-poor, and the reserves they have are not conducive to sustaining their economic or social needs. We have a long-standing history of protecting our lands and rights. Our people will not stand by and let this happen.
All parliamentarians must take ownership of their decision to ignore the sensitive issues surrounding the Yale treaty and will be held accountable for the conflict that arises and any injuries that might occur. We have made our best efforts to try to resolve this through the negotiating table. It is a sad commentary when the government of the day chooses to achieve the short-lived glory of signing a treaty over the inevitable unravelling of the treaty in the Supreme Court.
This was further confirmed with respect to the government's insistence that the abrogation and derogation clauses would satisfy our ability to go to court afterwards. I say this is a colossal waste of time and money.
I will stop now and allow an opportunity for my colleague Jean Teillet to finish with some comments.
Jean Teillet, Chief Negotiator, Legal Counsel, Stó:lō Nation: Good evening, everyone. I want to start by giving you some facts that seem to be a little muddled in the previous presentations.
The first thing is that in the Fraser Canyon, which is the area at issue, there are approximately 78 fishing stations. We have maps that go back well over a hundred years, and consistently over that period of time — many of those maps were made by the federal government, by the way — only two of those fishing sites are Yale's, historically. The rest belong to all the other Stó:lō.
The other fact you should know is that of the area that we are talking about in the canyon, more than 50 per cent of the treaty settlement lands that Yale will get are not on reserve. You should disabuse yourself of the idea that all the land at issue here is about reserve land; it is not. The bulk of it is Crown land that has been given to them.
The other important fact is that 60 per cent of the food fishery comes from the canyon. That means that this is a dramatic windfall for Yale. They are getting reserve lands and they are getting fishing stations that they have never had access or control over. When 60 per cent of Stó:lō's fishery will be affected, this is a significant hit to the Stó:lō.
The second thing I would like to point out is that the BC Treaty Process is dramatically flawed. There is nothing within the BC Treaty Process to resolve shared territory or overlap disputes. We do not call this an overlap dispute because we assert that Yale is Stó:lō. Whichever way you call it, there was never any process available to resolve this within the BC Treaty Process.
With respect to the consultation process that was initiated, the biggest flaw is that they came to us with a fait accompli. The deal was done when they came to us with respect to land, and we note that Chief Hope even admitted, when he testified before the standing committee of the House of Commons, that the land was never on the table. He was never going to do that, and he said it to you just now in his presentation. He said that is not the way it works. Stó: lÎ Nation will not be part of the Yale treaty.
As my colleague Grand Chief Joe Hall just said, that is the way it works in dozens of other treaties. Overlap and shared territories are provided for in other treaties. Why not here? That is an important question that you should be asking yourselves.
The next point is that there were questions from some senators about Aboriginal rights and title. I would like to emphasize that section 35 Aboriginal rights and title of the Stó:lō are not affected by the creation of reserves. The fishing rights are determined by what practices were at contact. Contact was in 1808 when Simon Fraser came down the river. Their title is determined by what their land use and occupation was in 1846 with the Treaty of Oregon.
That means that our rights and title arise from our use and occupation at that time, and the town of Yale, the creation of reserves, Yale Indians, none of that existed at that time. Those are all creations that came later. The idea that Stó:lō's Aboriginal rights and title are abrogated or derogated from this treaty is really a mixing up of the ideas of the effect of the creation of bands and councils. That would be the position that it says in the treaty, that it does not abrogate our Aboriginal rights and title, but it is because you are giving the land away.
The only accommodation measure we have been offered is access. What would you say if someone took your house away, any senators who own houses, and then turned around and said to you, "Oh, do not worry about it, we will let you apply for a permit so you can come back every once in a while if we think it is okay for you to come back"? That is exactly what has happened here. Yale does not own it. You are giving it to them. You are taking it away from Stó:lō and now you are saying we will be subject to their law, their permission and access. That is what was in that MOU. That is what is unacceptable, because the land was never on the table.
The other thing is that the MOU, whether legally binding or not, is not the point. It is only a 10-year agreement; 10 years from now it could be gone completely, yet they have a treaty that will last forever. The idea is that the MOU is trumped by the treaty, both in time and in law. The treaty will always prevail.
All of those things are what we have been offered. We have never been given an appropriate forum to settle this.
I will end on one point. We have proposed an amendment here that carves this out, and believe it or not it is a minor part of the territory. The bulk of the territory that Yale will get is below the canyon, because that is where they live and that is where their territory is. We are not disputing any of the rest of their territory. We are only talking about the canyon because it is fundamental. This amendment would not veto their agreement; it is a very reasonable thing and is something you have done in the past more than once.
I will stop there, unless Grand Chief Hall has anything more to say.
Mr. Hall: I will add one more comment. Treaties were meant to bring certainty and harmony for First Nations and non-First Nations people. The Yale treaty totally misses the mark in that regard and, worse yet, it establishes a horrible precedent for the remaining First Nations that are at negotiating tables in the province of British Columbia. That should be a worry, too, for all politicians in government because they are, in my opinion, still working hard to try to achieve more treaties in the province. We have been hearing tremendous concern from our colleagues at the chief negotiators' table regarding what is happening with the Stó:lō Nation.
Thank you. We are open to questions.
The Chair: Thank you, Chief Hall.
Senator Dyck: You have provided us with a lot of information, and I am not sure that I have understood all of it very well.
You claim that the Stó:lō and Yale belong to the same group, and Chief Hope said they are not Stó:lō. One of the questions I asked them with regard to their final agreement was whether it could accommodate the rights of other peoples, such as you. You might then consider yourselves separate from them. It seemed to me that he said the final agreement could be amended to take your rights into account if there was a court decision.
Is the court decision like the last straw? Is that not an option that you consider suitable?
Mr. Hall: Regarding the semantics being played here with respect to the Stó:lō, Chief Hope's mother is from Cheam and his father is from Seabird, I believe. His grandfather was the second chief of the Seabird First Nation.
Yale First Nation was part of the group that was involved in the creation of the Seabird reserve. We have always known that, and the fact that it keeps coming up as not being Stó:lō and the semantics being played, they are the same group of people. We respect them and their right to be in the canyon, and we will continue to do that because we have a number of relatives who are part of the Yale First Nation.
Ms. Teillet: With respect to the second part of the question about whether the agreement provides resolution or the ability for people to continue their rights, we do not believe it does. The agreement is silent on any Aboriginal people. Chief Hope himself said to us many times, "We will not treat you any differently from anybody else, and over my dead body will the Stó:lō be named in our treaty." That is what he said to us at our supposed mediation session. That is the attitude we got.
The agreement itself has access provisions, but we have to apply for a permit from Chief Hope in order to get on to their land, which he can refuse on various grounds.
He has already told us that if you litter he could refuse you your fishing rights.
Senator Dyck: The amendment that you are proposing, did you bring that forward when the bill was discussed in the House of Commons?
Mr. Hall: Over the past several years we have offered several options that we could pursue. Mr. Barkwell was in attendance when we were making these offers. We not only provided options but also provided a tremendous amount of history to show how we could move forward. We know there cannot be amendments, and it was ruled out of order by the standing committee, but we hope a member or senator can take this and say, "This looks simple."
We have said for many years that there were 13 clauses that needed to be changed. We support Yale going ahead with the treaty. The removal or the carving out of the Five Mile Fishery area has no impact on the bulk of the treaty that Yale is receiving, because they do not have any fishermen in there.
It is a total impact on the Stó:lō and very little on the Yale if they were not to receive that treaty. As my colleague mentioned, regarding the Yale reserves that they are talking about, what the government of Canada and the Province of British Columbia have been saying for too long is that we are increasing your access to their reserves. They were not their reserves. Those reserves were set up for the Indians in the Yale district and included the Stó:lō, and now, all of a sudden, we are dealing with this issue while we are converting all of their reserves to their title. Even Chief Hope said those reserves are not useable pieces of land because of the steepness. I think that is part of the answer that you were seeking, senator.
Senator Tannas: I wonder if you could help us understand this concept of fishing stations. Where are they, please?
Mr. Hall: When we talk about 77 locations in the area that we are discussing right now, those are spots where fishing can still take place. A number of the fishing spots have been destroyed by the railway, the highways and, to some extent, perhaps, the hydro lines and other utilities.
The river is wild in that area. When there was discussion about the public beach landing, which is in Yale town, around the corner, if anybody knows that area — I think Chief Hope referred to it — you need a powerful boat to get around those dangerous whirlpools that are just around the first bend.
It is important to understand that there is a restriction to cross lands to get to the fishery, but those 77 stations do not represent 77 people. They represent whole families. There are families that are larger than the entire community of Yale that fish at one spot in one of those fishing stations, and, as well, the fishing stations are dry racked. You cannot mitigate the dry rack process because of the narrowness of the canyon, the heat, the wind — you cannot move those dry rack stations.
Ms. Teillet: I think Chief Hall is saying this is irreplaceable land. It is absolutely irreplaceable. You cannot shift this fishery further down the river because the unique wind drying process that Stó:lō go through in the canyon cannot be done anywhere else, certainly not in British Columbia. This is something that it is not replaceable.
Senator Tannas: The fishing spot would be between the low water mark and certainly would be past the low water mark but below the high water mark.
What about the drying racks? Would they be between the low water mark and the high water mark?
Ms. Teillet: We were just talking with one of the fishermen this afternoon. He was saying you have to think about it a little differently. His fishing sites, to put it that way, are about five different areas, so two of them are not even accessible when the river is high and wild. He cannot get to them. Other ones he can get to at other times, and sometimes not at all. The dry racks are way up beyond, on the land, so they would be situated on what is going to be given to Yale as its treaty settlement lands.
As he said to us today, he cannot access it by boat very often. Even if you could get your fish by boat, you cannot get at your dry rack by boat. None of this solution or the idea that somehow they are below the water mark makes a difference. There are times of the year, like right now, when it is virtually suicidal to go on the river. I do not know if you have ever been in the canyon, but it is wild, wild river.
Senator Dyck: I would like to go back to my question because I am still not clear. With regard to accommodation of your concerns in the final agreement, I thought I had heard from the other witnesses that if there was a court order that said your claims are valid, the final agreement could be modified, and you are saying it cannot be modified.
Ms. Teillet: Perhaps I misunderstood you, Senator Dyck, and I apologize if I did. I was talking about whether accommodation had been made as a result of the consultation process.
As I understand you now, if Stó:lō takes this to court and gets a court decision that they have Aboriginal rights and title in the canyon, then the agreement provides that they will have to go back and redo the agreement.
How they would redo it and what would happen — we do not know whether that would accommodate us, whether it would carve the canyon out entirely. We do not know what the result would be, but they are supposed to do something to remedy the agreement or to amend the agreement, taking into account whatever the court says. I hope that answers your question.
Senator Dyck: That makes it clearer. Related to that, then, is that from your point of view, participating in the binding agreement is not an option. You have completely removed yourselves from that sort of memorandum of understanding. Binding agreement is not an avenue that you want to explore.
Ms. Teillet: The problem with the MOU is that it concedes the land to Yale, and it reduces Stó:lō from owners to users. We consider ourselves the owners of the land, and the MOU starts from the premise that Yale is the owner and we are users, so that is the basic problem with it.
Mr. Hall: I was going to add that the history that Chief Hope was referring to is that there has been a history of bullying going on to try to chase fishermen out, which creates a discomfort when it comes to discussion about agreements or permits that could be denied. The definition of "reasonable" comes to mind. We know how challenging it is to define "reasonable." That legacy created a tremendous amount of concern as to why we would acquiesce and agree to an MOU when there are terms involved, for example, 10-year terms. There are no guarantees that the next administration is at all interested in talking about agreements.
Senator Dyck: Thank you.
Senator Tannas: Just to pick up on that again, are you saying that it would be not possible? You would be prevented from signing the MOU, getting a 10-year run, and going to court? As you understand it, if you sign the MOU, you cannot go to court and assert your rights and ultimately be successful or not in court? Could you do both?
Ms. Teillet: I do not think we have ever looked at the possibility of doing both. The MOU was presented to us. Actually, it is the same position Chief Hope has been taking from day one, which is that the land is not on the table, and this is only about an access provision. We see no benefit to it. If it does not allow our fishermen to get at their dry racks, if he can turn you away whenever he wants, we see little benefit in entering into an MOU with him.
His agreement does not come into effect until 2015. I would imagine if Stó:lō will launch a court case, it will happen before that.
The Chair: Thank you very much, to both of you. I apologize again for delaying your appearance this evening. Thank you for your commentary and also to the senators for questions. We will suspend for a few minutes until we turn off the feed, and then we will go into discussion in relation to Bill C-62.
(The committee continued in camera.)
(The committee resumed in public.)
The Chair: Is it agreed that the committee proceed to clause-by-clause consideration of Bill C-62?
Hon. Senators: Agreed.
The Chair: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Shall the preamble stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 1, which contains the short title, stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 2 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 3 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 4 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 5 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 6 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 7 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 8 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 9 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 10 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 11 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 12 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 13 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 14 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 15 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 16 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 17 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 18 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 19 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 20 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 21 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 22 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 23 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 24 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 25 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 1, which contains the short title, carry?
Hon. Senators: Agreed.
The Chair: Shall the preamble carry?
Hon. Senators: Agreed.
The Chair: Shall the title carry?
Hon. Senators: Agreed.
The Chair: Shall the bill carry?
Hon. Senators: Agreed.
The Chair: Does the committee wish to consider appending observations to the report?
Is it agreed that I report the bill to the Senate?
Hon. Senators: Agreed.
Senator Watt: Are you asking for consent now to see who might be having some different opinions from the people who are prepared to agree with this?
The Chair: I am sorry, Senator Watt?
Senator Watt: I am not going to vote for this.
The Chair: Okay. I will ask the question again.
Senator Watt: I just want to make sure that I am not recorded as voting for this.
The Chair: I will ask the question again. I will take a step back.
Shall the bill carry? If you wish, you can say no.
Senator Watt: I say no.
The Chair: Shall the bill carry?
Some Hon. Senators: Yes.
The Chair: On division. Is that correct, Senator Watt?
Senator Watt: On division.
The Chair: Does the committee wish to consider appending observations to the report?
Seeing none, is it agreed that I report the bill to the Senate? I take it that is still agreed.
I want to thank everyone for the work on this. I know that it was short notice, and we pushed through. It is after nine o'clock. I thank you all for a long day and great work. It is always a pleasure to work together.
(The committee adjourned.)