THE STANDING SENATE COMMITTEE ON ABORIGINAL PEOPLES
EVIDENCE
OTTAWA, Wednesday, May 31, 2017
The Standing Senate Committee on Aboriginal Peoples met this day at 6:45 p.m. to study the new relationship between Canada and First Nations, Inuit and Métis peoples.
Senator Lillian Eva Dyck (Chair) in the chair.
The Chair: Good evening. 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 either here in the room or listening via the Web.
I would like to acknowledge for the sake of reconciliation that we are meeting on the traditional, unceded lands of the Algonquin people.
My name is Lillian Dyck. I am from Saskatchewan, and I have the honour and privilege of chairing this committee.
I will now invite my fellow senators to introduce themselves, starting on my right with the deputy chair.
Senator Patterson: Dennis Patterson, senator for Nunavut.
Senator Raine: Nancy Greene Raine from B.C.
Senator Tannas: Scott Tannas from Alberta.
Senator Doyle: Norman Doyle, Newfoundland.
Senator Manning: Fabian Manning, Newfoundland and Labrador.
Senator Enverga: Tobias Enverga from Ontario.
[Translation]
Senator Mégie: Marie-Françoise Mégie from Montreal, Quebec.
Senator Brazeau: Patrick Brazeau from Quebec.
[English]
Senator Christmas: Dan Christmas, Nova Scotia.
Senator Boniface: Gwen Boniface, Ontario.
Senator Watt: Charlie Watt, Nunavik.
Senator Lovelace Nicholas: Senator Lovelace Nicholas from New Brunswick.
The Chair: Today we continue our study on what a new relationship between the Crown and First Nations, Inuit and Metis people could look like.
We continue our historical background with Miles Richardson, Director, National Consortium for Indigenous Economic Development, University of Victoria, who will talk to us about the history of the West Coast.
Mr. Richardson, you have the floor. After a 10 or so minute presentation, there will be questions from the senators.
Miles Richardson, Director, National Consortium for Indigenous Economic Development, University of Victoria, as an individual: Madam Chair and honourable senators, my Haida name is Kilsli Kaji Sting. I’m from the Eagle Clan of Cha’atl, my ancestral community. I am Haida Gwaii. I’m here speaking today as Director of the National Consortium for Indigenous Economic Development at the University of Victoria. I’m joining you by video link from the territories of the Coast Salish people here in Vancouver.
I am honoured to have the opportunity to participate in your important discussions. As you said, I’d like to make a brief opening statement and mainly engage in dialogue about some of the history of our attempts in the past to address the fundamentals of the relationship between the indigenous people of what we now call Canada and the Crown, the nation state in right of Canada over the years.
I see the three parts of your mandate from the Senate, and today we’re addressing Part A, the history of the relationship. If I left you with one point today, it would relate to the larger mandate the Senate has handed you, in that establishing a proper nation-to-nation relationship between the indigenous people and the Crown in right of Canada is exactly the proper policy approach for us to be taking as a nation at this point in time. All Canadians, and I’d suggest all indigenous people, should focus on making this work and move to implementation of defining what that commitment means and moving to implementation of that commitment. My comments today are offered in that spirit.
In my life, I grew up as a citizen of the Haida nation and among my people in Haida Gwaii. I left my homelands in my late teens to attend high school in Prince Rupert, where I lived with my grandmother. After that I went to university in Victoria and earned a degree in economics. Coming home after that, I served as president of my nation, the Haida nation, for 13 years from the early 1980s to 1996.
That gave me a lot of perspective on the nature of the relationship between indigenous people, in particular my people, the Haida nation, and the Crown. In alliances we made with indigenous people right across the country, I got a broad perspective on what worked and what didn’t, what the objectives from an indigenous perspective and a Crown perspective could be or ought to be.
While I was president of the Haida nation, I had been involved in a lot of conflict with my people on the land and in the courts, in asserting our indigenous title, on protecting our Aboriginal rights in Canada and protecting our life source, our homeland, from destructive forces that were at work in those days to essentially destroy our life source and our relationship to place.
During those times we’d worked a lot with the political apparatus of Canada and with our neighbours in British Columbia and across the country. I got to know and joined forces, to a degree, with Senator Watt, the Inuit people up North and many nations across this country. Even in the midst of all this conflict, and in looking at the trend in the law and the basis of the rule of law in Canada, I saw a glimpse of hope there was a fairly unique opportunity in the world for us to build a proper relationship between indigenous people and Canada, the Crown in right of Canada and the provinces.
I decided early on, as I left leadership of my people to pursue that, to join the British Columbia Treaty Commission in 1996 and served on that commission, which was mandated to facilitate treaty negotiations in British Columbia, until six weeks before the federal election in 2004. For the last five years of that term I served as chief commissioner.
We started off with a lot of high expectations. As the 1980s turned into 1990 there was a huge call in British Columbia for resolving the land question, as it was referred to, resolving the title dispute in British Columbia. The federal government and provincial government joined First Nations through the B.C. First Nations Congress and said, “We’re going to address this issue.”
We formed a government-to-government committee called the British Columbia Claims Task Force. It had seven members: two appointed by the federal cabinet, two appointed by the provincial government and three appointed by the First Nations. I was one of those appointees, as were Chief Joe Mathias and now the Grand Chief Edward John. We took six months and we designed the treaty-making process for British Columbia.
I will tell you one thing. That process was ratified by the federal and provincial governments and by the First Nations in British Columbia. It is still a model of an appropriate treaty negotiation process today. It exists and I encourage each of you to read it. It has almost become an historical document. I don’t even know if anybody refers to it anymore. It was intended as the Bible for treaty negotiations in British Columbia.
After the signings by the prime minister of Canada and the premier of British Columbia, and a sacred solemn ceremony in Squamish Nation in Vancouver, we thought that we’d turned the corner. We thought that we’d established a nation-to-nation relationship, at least in British Columbia; but before the ink was dry the policy apparatus and the legislative apparatus of both governments quickly forgot their commitments and we reverted to the same situation we’re trying to get out of today. That was 22 or 23 years ago, but it serves as a background to my experience on what to do to a degree but mostly on what not to do. I hope to share some of that experience with you as that time as chief commissioner.
Before we get into discussions, I will end with these comments: When I look at the history in Canada of the relationship between indigenous people and the Crown, I see it in three essential phases. The first phase was the colonial period when the various colonial powers of Europe and Russia, in our case on the West Coast, were vying for a leg up in establishing their authority in what has become Canada. That was a period when Britain came to the First Nations at Niagara Falls with a royal proclamation that would underpin their policy: Any relations with indigenous people, as described in their Royal Proclamation of 1763, would be conducted on a nation-to-nation basis. Without a nation-to-nation treaty, the indigenous peoples would not be disturbed in their authorities and the places that they called home for thousands of years, for hundreds of generations. They took that offer to Niagara Falls with about 25 of the First Nations that they then had relations with and came out of there with the Treaty of Fort Niagara.
The First Nations on the East Coast, the Haudenosaunee and others, brought the Two Row Wampum and the Covenant Chain. They talked about living side by side and respecting each other on a government-to-government basis but going down the river of daily life as partners and supporters of each other, which those of us on the West Coast always saw as an appropriate standard and certainly informed our intentions in concluding the B.C. treaty process and the commitments therein. That was the first phase and it included good intentions but it didn’t last long.
This year Canada is celebrating 150 years since it established its Parliament and put in place the framework for Canada’s nationhood. Around the time of the Treaty of Fort Niagara, Canada started negotiating treaties one to 11 across Canada, east to west. By the time they got to British Columbia, they severely, obviously and starkly changed their mind. This policy of nation-to-nation treaty making turned to one of denial of the fundamental legal and human rights of indigenous people, denying, denying and denying those rights while putting in place an operative policy to assimilate indigenous people into the body politic.
I don’t need to repeat all the details. It’s well-worn discussion. We all know what that included. Senator Sinclair and the Truth and Reconciliation Commission have laid it out plainly for all Canadians to see. That was what I’d call phase two, which was the dark period for indigenous people, that we’re working to come out of now.
The third phase is what I will term reconciliation, where we’re attempting to build an appropriate new relationship going forward after 150-plus years of doing the wrong thing. Certainly, the leaders of indigenous people have consistently stated and restated the existence of our title, the recognition in British and Canadian common law of our title, and the need to negotiate treaties to figure out how we are to live together in our homelands.
That has constantly been rebuffed. The reserve commissioners came out West in the late 1800s and the early 1900s on the two versions of the McKenna-McBride commissions. They forced our leaders to testify and to attempt to name lands that we needed for our communities without ever having addressed the title question. All these commissions are well documented. Most of them have Hansard-like records that you could read today.
Consistently our leaders stated: “Why are you telling me you’re going to give me land? That’s my land. You can’t give me my land. The Queen cannot give me my land. It’s all my land. If you want to talk about the title dispute, let’s sit down and negotiate treaties. That’s what your law bids. That’s what your integrity bids. Let’s get on with that.” They forced band councillors and leaders of the day, under threat of jail, to testify and demarcate the lands. It has never been seen as a legitimate process by our people.
In 1924, the allied tribes of British Columbia took a trip to Ottawa and presented our case for addressing the title disputes through negotiations at a joint sitting of the Senate and the House of Commons. That delegation was led by Godfrey Kelly, one of my relatives and Haida leader, and Andrew Paul from among the Salish. They made an eloquent case for addressing these issues through treaties. You can read it in Hansard. There is a Hansard record of those meetings in 1924.
Far from persuading Parliament and the House of Commons to address these issues, Parliament went to work, again banning the fundamental institutions of our nation’s strength, such strength as we had left after all the plagues decimated 85 per cent to 95 per cent of our populations on this coast. They started outlawing the potlatch and our very governance systems as a response to our approaches.
To summarize that point, as this was going on the laws of Canada started increasingly recognizing the rightness of the indigenous people’s position over the years. One of the ones that marked substantial progress in the recognition of the continuance of indigenous title and giving expression of Aboriginal title in Canadian laws was the Calder case in the early 1970s. The Supreme Court of Canada split on the existence of Aboriginal title. Since then it has been the longest winning streak in Canadian legal history of the existence of Aboriginal title on the terms that indigenous people see it.
Our challenge right now is to recognize what we’ve done wrong for the past 150-plus years. Denial of fundamental human rights is wrong. Assimilation and trying to make indigenous people something they’re not is wrong. Canada formally and officially apologized for that in Parliament in 2008. Now we need to change that approach as a country and put in place the correct relationship.
I submit that correct relationship is what the new government has announced as their central policy of establishing a nation-to-nation relationship. Now it’s up to us, this living generation of Canadians and indigenous people, to do it right.
There’s no shortage of direction. I cited to you the British Columbia Claims Task Force report, which I would argue with anyone is still an appropriate treaty-making process. We need to do it. We can’t take our existing processes, put lipstick on them and pretend it’s a proper treaty-making process.
We have to begin with recognition of indigenous nationhood and build the steps from there, step by step. I know you’re going to get at that at subsequent hearings, so I will leave it there, but that’s the right thing to do. I really applaud the Senate in taking the effort. I’m not sure what authority you have to cause this to happen, but putting this discussion and information on the record is a good thing. Participating in this most fundamental debate as Canadians is essential. I thank all of you for doing so.
Madam Chair, I’d like to engage in any discussion that the senators might be interested in.
The Chair: Thank you, Mr. Richardson. We have some senators with questions.
Senator Patterson: I would like to very much thank Mr. Richardson for an impassioned and comprehensive history of the situation in B.C. and an impassioned call on us to help with his task of finally building a new relationship.
You spoke eloquently of human rights. Interestingly, we had a debate we had this afternoon in the Senate about the rights of women, in particular, having been consistently denied through the Indian Act. I thought we had a good debate, sparked by the report of this committee.
You asked what authority we have. I have to be open and say that our authority is moral but we believe the government will welcome our recommendations, to which they must respond.
I’d like to ask you on your presentation what may be a difficult question. Could you describe what the British Columbia Claims Task Force report recommended that would have led to a new respectful relationship in B.C.?
Mr. Richardson: That’s a very important question and at the heart of what I presented to you. In its 19 recommendations The British Columbia Claims Task Force report recommended to the Government of Canada, the Government of B.C. and First Nations, was to follow established British and Canadian laws.
The Royal Proclamation of 1763, a founding document at the Treaty of Fort Niagara in 1764, is still a part of the Canadian Constitution. It’s still a part of the law of Canada. Over the years the courts have without question established that Aboriginal title, our original titles, continue today to exist. If they existed at the assertion of sovereignty of Canada, then Canada’s highest law, our Constitution, protected those laws as they then existed.
We made 14 treaties on southern Vancouver Island and a little extension of Treaty 8 in northern B.C., bit we recognize that the rest of B.C. was untreatied. Aboriginal title, in whatever form it existed throughout history, still fully existed and was protected by Canada’s highest law. We recommended in the British Columbia Claims Task Force is the governments of the day begin the negotiations by recognizing the indigenous people. If you read the fundamentals ABCs of law in the Calder case, the Supreme Court of Canada recognized, and it certainly wasn’t a bombshell or anything: “Your title exists because you still exist in organized societies and are functioning much as you always have, long before we showed up and after we showed up. You continue to exist as societies.”
That’s the fundamental beginning point of the recommendations of the British Columbia Claims Task Force report. I referred to it generally as mutual recognition: indigenous nations recognize Canada is here and, in the later words of a wise Supreme Court judge, “It is here to stay.”
First Nations never argued with that. We didn’t ask people to leave, and never have but we asked the Crown, in right of Canada and British Columbia, to recognize that our nations continue to exist and, by agreement, we all agree are here to stay. “We’re no longer trying to snuff you out,” we wanted them to say and which they did say in the grievance. We no longer have a policy of denial and assimilation.
We’re going to sit down, as people with integrity, and we’re going to negotiate these fundamental issues, which we’ve neglected for too long. How long? It has been 150 years. I was in Canada House in London a few weeks ago and the high commissioner welcomed our delegation. She said, “I know Canada is celebrating 150 years of existence.” She smiled and said, “We have plumbing in this place older than that.”
After 150 years, it’s not too late to do the right thing. It’s very late, but we have to do the right thing now. Establishing mutual recognition was the beginning, and then going forward in consultation and agreement with each other, step by step, was the purpose of the interim measures. Right now our whole system is set up under statutes, under federal and provincial authorities, none of which have contemplated the existence of First Nations, of indigenous people.
It is for the treaty-making table to sort those out, to figure out how indigenous rights, interests and reality will be included in any federal and provincial jurisdiction, and turning over to the First Nation any jurisdictions they need as integral to their existence, anything they choose to continue to wield.
The negotiating process is unfolding. The process recognized that treaty making is a process, not an event. It’s not something that the smartest people in the world could sit down and work out by four o’clock this afternoon. It’s going to take building the new relationship. It’s going to take building trust for each other. It’s going to take working out our future together, step by step, which is going to take time. That’s why interim measures were put in place, which is a mutual recognition.
Here is the big one in terms of Canadian policy: rejecting the notion of extinguishment. Up to that date, the main purpose of federal government negotiations was to extinguish any legal entitlements held by those people. That was the number one purpose of their negotiations. In return, they provide a little package of goodies: some land, some money and, later on, through the insistence of First Nations, recognition of some governance powers.
The British Columbia Claims Task Force report rejected out of hand that extinguishment approach and said, “What we need through negotiations is to establish certainty of jurisdictions.” Let’s sit down and negotiate which governing powers, which jurisdictions First Nations will retain, which jurisdictions will be shared by federal and/or provincial governments, or which jurisdictions First Nations, through their choice, will choose to give up.
The discussion in those days was among First Nations. We met every month over the six months of writing this process. Do we really need to retain jurisdiction over the post office? Do we really need to retain jurisdiction over foreign relations or the army?
Canada at that time was writing its own self-government policy, if you remember, which is in existence today. Essentially what Canada said is, “Yes, we’re all for negotiating jurisdictions with First Nations and the treaty process. We agree with negotiating every jurisdiction the provinces own, none of the ones we hold.” That was essentially their approach.
I would encourage each of you to read the British Columbia Claims Task Force report. It’s easy to google and find online. Look at the 19 recommendations. They are very general. We need to dig down into more detail. It’s obvious. We need to get to a sufficient level of detail to cause action. Action by the Office of the Prime Minister and at the cabinet level is not sufficient. We need to get down and rejig the whole policy mechanism of government and put in place these relationships and agreements on a pan-government basis. That’s what nation to nation must mean.
Those are the essential elements in a quick conversation on the British Columbia Claims Task Force report. There were recommendations around communications, involving grassroots people and relationship building on each side also.
Senator Patterson: What a great answer that was to my question. We usually get more than one question, so I’m going to ask you hopefully an easier one.
You talked about how the prime minister and the premier endorsed this approach, how significant and optimistic it was, and how optimistic people were. What advice would you recommend we give to this Prime Minister who, as you noted in your opening remarks, has made rebuilding the nation-to-nation relationship a high priority?
What advice would you suggest we give to this Prime Minister to make sure that the recommendations we come up with, which hopefully will be inspired by the work you described that has been done in B.C., don’t get lost before the ink dries? What does a political leader have to do to make these goals realized?
Mr. Richardson: You know what, I’m not being facetious here. In simple terms, read RCAP, the Royal Commission on Aboriginal Peoples. It’s over 20 years old. It goes into great detail on establishing a nation-to-nation relationship. In that context I’d say, first, commit, commit, commit to the nation-to-nation relationship. He said it. Nothing has changed. That doesn’t need to be a bad thing, but the Government of Canada and participating First Nations need to commit to that level of relationship.
Second, Canada needs to formalize that commitment. In the Truth and Reconciliation Commission recommendations they recommended a modern royal proclamation-like commitment, a formal binding statement by the Government of Canada on behalf of the people of Canada: “We are committed to recognizing the indigenous people of these lands that we all now call home and are committed to establishing a proper agreement, a nation-to-nation relationship.”
Third, I’d set up a working group at a pan-federal government level that has not one departmental silo. That’s the kiss of death to us. It has to be a representation on the federal government’s side that represents the whole of government. The indigenous people should set up as a working group to flesh out the step-by-step implementation needed, basically to flesh out what RCAP said 22 years ago in establishing that nation-to-nation relationship.
If you look at RCAP, they contemplate 60 to 70 nations across the country; 30 of those are in British Columbia. By “nations”, I mean peoples who have ancient common identities, who share a similar language, who share a territory, who share cultural traditions and who are related. It’s much more complicated by 150 years of colonialism. It’s a tough job, but we’re never going to get there without the commitment.
I know I’m going on too long, but let me tell just one quick story. When I first became Chief Commissioner of the British Columbia Treaty Commission, the new Minister of Indian affairs called me up and said, “Look, a good minister introduces two or three pieces of legislation during his term. Any suggestions?” I said, “Darn right, I have a suggestion, minister. You’re committed as a Government of Canada to negotiating treaties in British Columbia. You’re sitting down nation to nation at treaty tables throughout this province. We’re doing our best to facilitate them. At the same time you’re doling out of your office the bulk of money that these communities depend on for their health, education, infrastructure, and all their essential services, and they’re responsible to you. What the heck kind of a negotiation is that? If you’re going to be serious about nation-to-nation negotiations, challenge the First Nations involved in those negotiations to define their fundamental nationhood and their governing processes, to get a mandate for their people for these fiscal transfers and to transfer their budgets to their own people, where their governments are accountable to their own people, so they can act in those ways. Then I’ll believe you’re serious about treaty making.”
To his credit, he tried to do it. The chiefs across this country blew him out of the water. It’s not going to be an easy job, but that’s what needs to be done.
Senator Lovelace Nicholas: Yours was a very inspiring speech, as was your story. My first question to you is this: Who was the prime minister in 1924?
Mr. Richardson: Holy smokes. What a question! I know who the leader of the Allied Tribes of B.C. was. Was it Laurier?
Senator Lovelace Nicholas: I don’t know. I’m asking you.
Mr. Richardson: Ask Charlie beside you. He must have been around then.
Senator Watt: I was not even around.
Senator Lovelace Nicholas: Let’s put that on the back burner.
Mr. Richardson: I’ll have to look that one up.
Senator Lovelace Nicholas: What would an alleged apology of the Pope mean to the First Nations people? How would we change the relationship? Will Canada even acknowledge First Nations people within the apology of the Pope?
Mr. Richardson: I think that would be a big step. That’s where a lot of this trouble started, but I think you have to go back even a bit further than that.
A lot of the colonial treatment of indigenous people started with the papal canons in the Catholic Church that exist today. When the European explorers set out for what they called “The New World,” before they bumped into North America the papal canons gave them two options if they ran into new people. First, they had to convert them to Christianity. That’s why a lot of indigenous people today don’t like the word “reconciliation,” because there’s a definition for reconciliation that means to bring back under the authority of the church, and that’s certainly not what we’re talking about here.
With the authority of the papal canons, when they ran into new people in what they called “The New World,” the church authorized them to first attempt to Christianize them, and if they couldn’t Christianize them, it was okay to kill them. Those are still on the books of the Catholic Church. Those must be done away with. That should precede any apology. The apology is empty, if those stay there.
Senator Lovelace Nicholas: Thank you for your answer, and I totally agree with you.
I have a problem with the provinces interfering with the indigenous people because it’s the responsibility of the federal government.
Mr. Richardson: I’m not getting your question.
Senator Lovelace Nicholas: I’ll repeat. I have a problem with the provinces getting involved with indigenous problems when it’s the responsibility of the federal government.
Mr. Richardson: I hear what you’re saying. That’s a question we have to deal with directly in designing the B.C. treaty process. One reality or one fact we can’t get away from is that the Crown is a divided sovereignty.
The heads of power are held by the provinces and the federal government can’t dictate to them what to do. The provinces are basically sovereign in their areas of jurisdiction, so under section 91(24) they say the federal government has authority for Indians and lands reserved for Indians. That was the colonial approach. That was just shuffling us off into the corner.
At the same time, our lands and territories, which are the basis of who we are, are a jurisdiction under Crown authority of the province. If the provinces aren’t at the table, we can’t effectively deal with lands and resources. In British Columbia, there was a lot of discomfort with that, but in recognizing the jurisdictional division of the Crown they had to be there. That is the importance of the nation of Canada, through the federal Government of Canada, making a policy about a nation-to-nation relationship. They need then to spend the resources of this nation, the authority of this nation to make that reality, and use whatever power they have to persuade, to encourage, to cajole the provinces to toe that line, and to step up to the plate in that nation-to-nation commitment. My experience in B.C. is that they will. It’s the federal government that has been the laggard.
Senator Enverga: Thank you, Mr. Richardson, for being with us today. My question is to more do with the designation of the Haida Heritage Site. Can you tell us more about this? How did the Haida people come to this decision?
Mr. Richardson: That’s a really good question. Back in the 1980s, the Haida nation was facing a situation where the last tree was threatened to be cut. They were cutting so fast and so much we could see the end of our forests. All the fish were being caught and carried away to canneries. The habitat was being destroyed. The minerals were being ripped out of the ground and then, in the mid-1980s, they were threatening to drill for oil and gas in our waters.
Our elders told us that if we didn’t get control of this relationship, we might not survive as a nation. Our nation at that time in the mid to late 1980s made an important decision. We decided we were going to resume, such as we were able, our jurisdictions and our responsibility for our homelands, our life source. We were no longer going to go hat in hand and try to lobby the federal and provincial governments that never listened to us. We built a modern constitution. We took our rich, strong oral tradition which had a very strong traditional government, and we put it in writing. Anybody who came to our homelands and had any dealings with us could see it. If you go to haidanation.ca you can read our nation’s constitution.
Based on that constitution, our people enacted our own legislation over land and marine use. No one was listening to us, so we drew up a land use and marine use plan for all of our territories. Piece by piece, as we had the ability, we legislated in our annual House of Assembly those land designations. In 1981, we designated Duu Guusd Tribal Park, a Haida heritage site. In 1985, we designatedGwaii Haanas as a Haida heritage site under Haida legislation. In 2010, the Haida nation signed a respect protocol with B.C. that brought all of our land designations in line with each other. B.C. put in place legislation to match the Haida legislation that had been put in place 20 years before. It all came from Haidas saying, “Enough is enough. This is our homeland. We are the owners and we make the rules.” We asserted it according to our means. Canada and B.C., to this day, have come around and adjusted. Our legislation proved better than theirs in our homelands. Things seem to be working just fine now.
We’d like to resolve the overall nation-to-nation relationship so that we can begin building modern economies in our joint vision, but we’re not there yet. It’s still a project we’re working on, but in terms of land and marine use planning our legislation prevailed to this day.
Senator Enverga: Would you say you are successful with this endeavour? Would you also say that the other First Nations should follow your lead to make your system a model of this practice regarding the relationship with the province and the federal government?
Mr. Richardson: I wouldn’t be so arrogant as to say that, but to your previous point of whether we’ve been successful, I think we’ve turned the corner. I’ll put it that way. The hopelessness and the thought that we would become a footnote in history is no longer front and centre in our face. We see that we can make this relationship work. I believe we’ve turned the corner in terms of establishing our own jurisdictions and asserting those jointly with the federal and provincial Crowns in our territory. We still have work to do in harmonizing our other legislation around governance and our legislation around all the aspects of life in Haida Gwaii. This nation-to-nation relationship would be a benefit for all of us.
When you look at First Nations we’re not generic. One of the things the Indian Act attempted to do was label us all the same: Indians from coast to coast to coast. We’re different. Indigenous people in Canada are as different as the nation states of Europe and Asia. We have a lot of common traditions, but the realities of where we live and conduct our lives are quite different. The opportunities are different. There is no cookie-cutter approach but there are some things such as, would I say, accepting responsibility for your nation’s faith and asserting your jurisdiction as something worth doing? Absolutely I would say that, but it’s up to each nation to decide on their strategies.
Senator Enverga: What do you say is the reason other First Nations do not want to follow your lead in this case?
Mr. Richardson: You are asking a question and I am just going to give you an opinion. I don’t think it’s a matter of following our lead. Accepting responsibility for your nationhood is worthwhile for any nation on earth, not just indigenous people.
Our people have been weakened a lot. I’m not saying that in a whining way. It’s just the reality. Our strength is in our governing systems. We’re a collective people. Our assets, our rights and title are held collectively. We need functional governance processes to make those work. Those have been stripped away and put in place with the Indian Act that has some guy or lady in Ottawa who is in charge of all that stuff.
The levers of influence over our own lives are in other hands. We’ve stood up and we’ve taken them back largely. I would encourage other people to do that. Health care is in the balance. The education or the well-being of your children is in the balance. Many of you read the news every night. You see how precarious that situation is in most of the country.
It’s not easy to step out. I give every one of the Haida people strength because we were either to prevail or perish. There was no halfway. I take my hat off to Canadians and to Canada that we made it through, and now we’re strengthening. We need to do that in every nation in the country.
I would turn that question around and ask: Is Canada willing to treat every nation as they’ve dealt with the Haida nation?
The Chair: Mr. Richardson, I understand that perhaps you don’t have video anymore on your side.
Mr. Richardson: Yes, I’m looking at myself.
The Chair: Well, we’re still here.
Senator Brazeau: Good evening, Mr. Richardson. Thank you for your presentation. You talked a bit earlier about the RCAP, Royal Commission on Aboriginal Peoples. As you are very well aware, it is mentioned in that report that there are potentially between 60 and 80 true, historical First Nations. As you are very well aware, you know that the Indian Act has fragmented those true, historical First Nations and has created over 600 First Nations communities across the country.
We talk about the nation-to-nation process and getting to treaty tables and whatnot with the different levels of government. I know you can’t speak on behalf of all the nations across Canada,but what process would you propose or recommend that First Nations groups, communities and peoples undertake to start perhaps naming spokespeople and negotiators for that true nation-to-nation relationship building, or would it be all the chiefs across the country?
Mr. Richardson: I believe that’s another really good question. In my time as chief commissioner of the treaty commission, we proposed a First Nation definition tribunal appointed by the Crown and First Nations by agreement. They would probably be three-person panels who would work with all those within the realm of rights and title holders of any nation to work out their definition of nationhood.
It is a big job. People go to war over these issues around the world, so I don’t underestimate the seriousness of it and the effect of 150 years plus of colonialism. Once we commit to the nation-to-nation relationship, once Canada adopts the Truth and Reconciliation Commission’s recommendation for a new modern state, a modern royal proclamation on the proper relationship being nation-to-nation that we’re working toward, Canada should set up a group made up of Government of Canada reps, whole of government reps and First Nation reps and adequately resource them and get on with defining those nations. That’s really important because this is a big job.
RCAP has some ideas. The British Columbia Treaty Commission came up with some ideas. There are many other examples. Much thought has gone into this. Canada should set up a process for First Nation definition because it is none of the Crown’s business how we define ourselves as First Nations and form our governments. At the end of the day, we need to have a homogenous interface. We need to be connected. We need to click on all gears working together.
That’s a common challenge, but in indigenous nationhood definition the Crown must support us and not keep doing things contrary to resourcing activities or contrary to a nation-to-nation relationship. I gave you one example about governance. There are many more. The Crown needs to resource this initiative and pour all of its resources into building this nation-to-nation relationship.
Having said that, there will still be some communities that will not give up on what they have now. That’s a reality we will have to deal with. Maybe Indian Affairs will have to continue in some form as it diminishes and diminishes and diminishes, and as more nations choose the nation-to-nation relationship. I think that’s what needs to be done. We should start with the willing. There are a lot of nations in Canada that are serious about surviving and prospering into the future and understand that if there’s any place on earth that can be accomplished it’s within the framework of Canada. I’m one of those.
Senator Brazeau: Thank you for your answer and let me just build on some of your comments. I’d like to take it a step further. Because governments in the country come and go. They are of different political stripes and colours. One government might do one thing one day, but a successive government might do something different. How do we ensure that future governments commit to this process and continue on what would be negotiated from the outset?
Mr. Richardson: In the past, there was one approach, that of the Charlottetown Accord. What was embedded in that in terms of indigenous governance would have brought a lot of clarity to constitutional negotiations to establish indigenous governments at an equal level to Crown governments. It would have been a big step.
I believe it’s already in the Constitution, but clarifying it through political processes would be a big step. If you did the governance piece and the modern royal proclamation piece in that way now, it would be a clarification of the existing Constitution. That would be an impetus that future governments could not ignore and the courts would continue to implement but with political clarity. Then you just put the resources into it and keep building, step by step.
The only certain way to do that in the long run is to build the momentum. I talk about land use planning. We don’t have many treaties out here in B.C. but one thing we have is land use plans. Now we’re working on marine use plans over almost all of the land mass in the northern half of British Columbia and most of the southern half of British Columbia. We have government-to-government agreement on how we as humans,relate to our places, our homes, in terms of land use planning. It’s a huge step.
No one else in Canada or the world even seems to know that we’ve made this accomplishment, but when we first started down that road we asked all the stakeholders to agree to having any disputes resolved at a government-to-government level between First Nations in their territory and the Province of B.C. The business community and the municipalities were running around saying, “The sky is going to fall.”
After we established it and one government had the courage to do it, that was Premier Campbell and his government, we put it in place. You couldn’t move that with dynamite today. It’s a bulwark of certainty in this province and it’s generally viewed as a good thing. That’s how we get there.
The Chair: We have four more senators on the list.
Senator Brazeau: One of the things we’re not usually able to talk about in Ottawa is opening up the Constitution. Premiers don’t want it. The federal government doesn’t want it. In terms of having clear recognition like you mentioned, perhaps in the Constitution by opening up the Constitution, would you support a process such as that?
Mr. Richardson: I don’t even think we need to open it up for further discussion. I think we need to clarify what our intentions were around indigenous title and governance. I think it’s bringing greater clarity.
That’s all Charlottetown did. Charlottetown didn’t create the then Aboriginal right to self-governance, but there was a lot of fighting about it and legal wrangling. Charlottetown would have just clarified that: “As a country this is our commitment, this is our intention, and this is how it will roll out. Indigenous governments will be at the same level as Crown governments and will sort out jurisdiction. ”
I guess that would be opening the Constitution for a moment to do that, but I would not want to get into a whole new round of constitutional wrangling. If that’s what it takes, it might be worth it. We could also in the short term do it with a mutual legislative approach: the First Nations and the Crown legislating it out and, as Patrick Brazeau suggested, fighting it out election to election.
We could reach a political agreement if the federal government could make the commitment nation to nation. We would clarify our governance policies. We would clarify our policy around extinguishment. We would clarify all those key policy items and then bring that clarity into the Constitution. That would be ideal, but that’s going to take some time. I think we have to move faster than that in the short term.
Senator Raine: Thank you for your insight today. I am from British Columbia and like many people in British Columbia I follow with great interest the progress of First Nations in establishing their rights.
One thing that I find when I talk to people is that words are important and a word carries a meaning to somebody. When you use the word “nation,” and due to colonial influences these communities were all separated and now they are considered as nations, I think it makes it difficult.
I would like to ask how you approach that in the Haida First Nation. Did you bring the communities all together into one bigger negotiating group to form the nation, or was it always like that?
I know there are linguistic groups right now, different First Nation alliances or groupings in B.C. that have partnerships and political governance. Maybe “governance” is the wrong word, but how do you see that rolling out? As Senator Brazeau said, we kind of wrestle with what is the nation. I like the idea of a tribunal, except I don’t know if it would ever get there. I would rather think of maybe three wise men who went off together and drew it up and didn’t consult too much.
Mr. Richardson: At the end of the day you will still need to have general agreement that you got it right.
Let me say that in my very strongly held view a community is not a nation. The 600-odd Indian Act bands across the country are not nations. There are some nations that have one community but that’s for other reasons.
In the Haida nation’s example, we brought together a consensus of modern communities and ancient, old communities. To answer your question, in 500 years such an entity as a Haida nation as a governing authority didn’t exist proper. There were alliances and common actions that happened as a result of our governing process, but there wasn’t an annual House of Assembly for an entity called the Council of the Haida Nation. We created that in our lifetime.
The way we did that was to begin by defining. If you read our constitution, which you can see online at haidanation.net, it begins with a proclamation. That proclamation is a statement to ourselves and to the world of who we are and what is our place in the world and, very importantly, what our place is in our territories. It’s just a timeless statement of who we are.
To accomplish that, we reached an agreement among our two modern communities. Half of our people live in the United States, up in southern Alaska. One of the two Canadian communities in Alaska is called Hydaburg. They came together as the living descendants of 40 old communities spread out across the islands before the smallpox epidemic hit. After the epidemic wiped out so many of our communities, we had to come together in two communities to survive and help each other. All of us trace our ancestry back to our original communities.
When I introduced myself at the beginning of this discussion, I introduced myself as an Eagle from Cha’atl. That’s my ancestral community on the west coast of the Haida Gwaii. Currently I live in Skidegate on the east coast.
Each of those clans from each of those communities came together to form a consensus for our nation. Every step had to be done formally. There had to be formal notice given. There had to be agendas drawn up that gave people time to prepare. We had to be disciplined about how we conducted the discussions and gave everyone a chance to participate.
Plus, we had a high standard for ratification. Our standard was 75 per cent, which is a high standard, but when you have 30-odd clans and two major communities who are all equal owners of this nationhood apparatus, we had to do it properly and we had to do it carefully. There are many ways of doing it. Our way of doing it was one. It took a long time. It took a lot of confrontation, loving and good facilitation through the process to get us there, but we’re largely there. We still have a lot of work to do.
As we speak today, my people in Haida Gwaii are sitting in a constitutional assembly evolving our constitution to the next plateau. It’s constant work. All the tribunal would do is make sure, in terms of the needs of Canada, that we are harmonized, that we reflect the real needs of each nation, that those needs are respected, and that the process put in place to develop this nationhood had a fair chance of succeeding.
Even if we were to put in place a tribunal at a national Canadian level, say at the Ottawa level, the group that worked on nation X, say, might be three wise men or wise women whom you send up to the mountain to come back and make a plan. Maybe that would work. Each nation will have to design that and agree to that in terms of their own process. It’s really important to be done that way. It must be done by the nation and it must be supported by the Crown in right of Canada.
Senator Raine: I think I heard you say that even if there’s a tribunal at the national level, the impetus and the drive have to come from the people themselves.
Mr. Richardson: Absolutely. This is the principle we used in the British Columbia treaty process. At the end of the day, those who are to ratify the decision must approve the process at its beginning.
Senator Christmas: Thank you, Mr. Richardson, for sharing your work and your experiences. I think the committee finds it extremely helpful.
I understand, through the British Columbia Treaty Commission, that five modern treaties were successfully established. First, what role did these treaties play in rebuilding the indigenous economy? Second, what impact did the treaties have on the larger provincial economy?
Mr. Richardson: Studies have been done on those questions in the province by business groups and by the provincial government. I don’t have the exact results of those. You would have to talk to each of the nations that have managed to conclude treaties. There are studies that analyze the results, especially around the Nisga’a treaty, which was the first one. The chorus from their neighbours in Nisga’a, the non-Nisga’a, the non-indigenous, and that whole region of the province. It was a win-win situation economically for all people. There’s certainly no question about that. You can go on the Nisga’a’s website.
Ernst & Young did a study about 10 years ago analyzing the state of B.C. without treaties and extrapolating what the effect would be from treaties that have been concluded. They would answer the question better than I could this afternoon, so I’m not even going to attempt to do so.
If you look at the five treaties that have been concluded, each of them feel like they’re on the move economically. They’re seeing a brighter day.
Senator Christmas: The point I was trying to find out was that if other provinces or other indigenous communities embark on developing a true nation-to-nation relationship, the theory in my head is that if you successfully conclude a nation-to-nation relationship you will have win-win situations. Not only will the indigenous community become far more prosperous, which I guess that’s what we’re striving to achieve, but sometimes what’s often overlooked is that the economy of surrounding communities, non-indigenous communities, also improves.
I was trying to read whether or not your experience was that it is a definite win-win experience down the road.
Mr. Richardson: My experience with that is unequivocal. It is definitely a win-win experience. When I was chief commissioner of the British Columbia Treaty Commission we put in place a program called Community to Community Forum. We would go into the public sessions and people would be standing up and hollering, non-indigenous people fighting the treaty process. Then we would go into the back rooms and it would be a whole different story. They would be looking at how we could make this work and looking at how they would benefit.
Over the years, I think the consensus is strong that nation-to-nation results in win-win situations. A happy, prosperous neighbour is much preferred to an ornery poor neighbour, without question. Let’s talk more about this. You’re giving me a good idea for a research project for my national consortium.
Senator Christmas: This committee may be interested in the result of your work as well.
Senator Tannas: Mr. Richardson, I’m looking for your thoughts on something that I’ve heard before. I’m jumping way into the future, but I would be interested if you could help set my own paradigm straight.
If we get to the point where we’re talking about governments sharing resource revenue and so on in a significant way, which I believe will happen eventually, we can’t have businesses filing 80 tax returns. Somebody will collect the money and there will be some agreement to share it.
You reminded me of the part I’m struggling with. You reminded me of it today when you said we were a collective. In the rest of Canada, money and value accumulate with the people, and the people pay taxes. When we get down the road where revenue is shared with indigenous people, in your mind does the money flow first to the people and they then pay taxes for indigenous government and hold indigenous government to account for how their money was spent, or does it get poured in the top, in a true collective point of view, and indigenous government decides what the people get?
Maybe there are two points there. There’s your own experience, your own cultural norms and what you would expect, and what you think others would expect. Would there be differences?
Mr. Richardson: That is a fundamental point of negotiation. That must happen on a nation-to-nation basis. Having said that, there’s nothing wrong with a group of nations getting together and creating something like a municipal finance authority. Analogous to that, it could be an indigenous government’s finance authority. There are many ideas like that going around now.
If you’re asking me my opinion, my people currently put all those revenues into something called a treasury, a treasury controlled by the nation’s council that allocates it back to programming and back to investments on behalf of the people. That’s how I think it ought to work, but when it comes to another nation managing their finances, it’s none of my business; it’s all of their business. That’s the way I think it should work, but that would have to be negotiated on a nation-to-nation basis. The way you characterized that at the front end of your remarks is the way it needs to be done.
Another experience I had with the British Columbia Treaty Commission is that we weren’t making progress at individual tables on issues like fiscal relations. We did something called a blue sky process where we pulled senior officials from the federal government, from the provincial government and from the First Nations collectively, put them in a confidential back room and shut the door, and said, “You guys come up with approaches to how we’re going to do this.”
It was fascinating what happened. They were sitting back there talking, government to government, on things like tax room. Governments have these conversations all the time. How much tolerance does a taxpayer in X jurisdiction have to pay taxes? What do we have to pay for with those taxes? How are we as governments going to split those up? They were exactly the types of discussions that need to be had on a nation-to-nation basis within the framework of Canada.
That’s the way those have to work, but within each nation it would be very difficult. It would be inconsistent with nationhood if those dollars flowed first to individuals and then were taxed back to their nation, but that’s my opinion.
Senator McPhedran: Mr. Richardson, thanks so much for everything you’ve shared with us this evening. Your reference to the Charlottetown Accord prompted a memory of mine about the exclusion of all of the indigenous women’s organizations from the table in the course of the negotiations and discussions. Then, on the reference to various models, including possibly three wise men going off and coming back with a plan, I was very interested to hear your response in including the possibility that it could be three wise women.
As a result of your many years of experience in governance, what would you share with us about the inclusion of women leaders in the nation-to-nation process: recommendations, reflections or regrets, any of those?
Mr. Richardson: I don’t know if I’m the best one to ask. In the Haida nation the women still run the show. We’re a matrilineal society. All of our identities, all of our prerogatives, all of our authorities flow through our mothers’ lines. Each of our clans, which are the base unit of authority, is made up of a series of lineages. At the head of each of those lineages obviously is a woman.
They have much authority in terms of governance in our nation. It’s not formalized. If we’re going to take the next step in strengthening ourselves, we need to formalize that. Right now it’s those who in English they call matriarchs that appoint chiefs, remove chiefs and are basically the important decision makers. They’re like a big-picture Senate. They weigh in on big issues all the time. Day to day, in terms of the democratic part of our governance, our Council of the Haida Nation, our one person, one vote, and whoever gets elected, gets elected, it’s not as urgent.
I’m not sure I’m the best person to ask that question, but women need to be involved. Women, through the Indian Act, for the past 140 years have been disenfranchised way too much. We need to compensate for that and bring back the balance, for our own good, for inclusion of women in our governance and in your definition of nationhood. We all need to be mindful of it.
Senator Lovelace Nicholas: It’s very good to hear your views. I am so happy that I attended this meeting tonight.
My last question would be this: What are your thoughts on the 150-year celebration? Should First Nations people be celebrating, or should they abstain?
Mr. Richardson: I like seeing the glass as half full. Definitely we should celebrate that we’re still here and we’re relatively strong. The intention over the last 150 years was to snuff us out and absorb us into the body politic. That we’re still here, that we’re still identified as being who we are in our homelands, in the places on earth where our Creator put us, is a testament to the strength of the human spirit. That’s worth celebrating.
Senator Lovelace Nicholas: Thank you so much for your answer.
The Chair: Thank you, Mr. Richardson. Clearly, you have impressed senators this evening with your lifelong experiences, wisdom and your very frank answers to the questions. You’ve given us some very strong directives on the way forward.
On behalf of all senators, I would like to thank you for that.
Senators, we have other business to conduct.
Mr. Richardson: All the best with your work.
The Chair: Thank you.
(The committee continued in camera.)