THE STANDING SENATE COMMITTEE ON INDIGENOUS PEOPLES
EVIDENCE
OTTAWA, Wednesday, June 21, 2023
The Standing Senate Committee on Indigenous Peoples met with videoconference this day at 4:34 p.m. [ET] to consider Bill C-51, An Act to give effect to the self-government treaty recognizing the Whitecap Dakota Nation / Wapaha Ska Dakota Oyate and to make consequential amendments to other Acts.
Senator David Arnot (Deputy Chair) in the chair.
The Deputy Chair: I would like to begin this meeting by acknowledging that the land upon which we gather is the traditional ancestral and unceded territory of the Algonquin Anishinaabe Nation and is now home to many First Nations, Métis and Inuit people from across Turtle Island.
I am Senator David Arnot from Saskatchewan. I am the deputy chair of this committee.
I would like first to state that we have an unusual situation. Senators will be called to vote. There will probably be a 30-minute bell. We will continue until we have enough time to allow the senators to vote and return. This panel is likely to be interrupted. However, we will continue on, because we have the ability to sit later to ensure that every panellist gets a fair opportunity to speak.
Committee members and witnesses, I would like to begin the session tonight by noting that this bill, Bill C-51, and the questions that are going to be asked and the dialogue that we will have here this evening will be a part of history; it is history-making. This is true of all Senate deliberations, but we should keep in mind that treaty making and treaties with First Nations are extremely rare events in Canada. Most of the legislation that we consider does not have, at least, a 140-year history of its making.
Personally, I’m deeply honoured to be allowed the privilege to chair tonight’s meeting and to be a part of the process where the Whitecap Dakota people shape their future in their own way.
With that, I will now ask the senators to introduce themselves.
Senator Hartling: Senator Nancy Hartling from New Brunswick.
Senator Sorensen: Karen Sorensen from Alberta, Banff National Park, Treaty 7 territory.
Senator Coyle: Mary Coyle, Antigonish, Nova Scotia, Mi’kma’ki.
Senator Greenwood: Margot Greenwood, British Columbia. Treaty 6 is my homeland.
Senator D. Patterson: Dennis Patterson from Nunavut, where we have a settled major land claim.
The Deputy Chair: Thank you, senators.
Today, we begin the committee study on Bill C-51, An Act to give effect to the self-government treaty recognizing the Whitecap Dakota Nation / Wapaha Ska Dakota Oyate and to make consequential amendments to other Acts.
I would now like to welcome our first group of panellists. We have with us this evening from the Whitecap Dakota First Nation, Darcy Bear, Whitecap Dakota Chief; Dwayne Eagle, Councillor; Frank Royal, Councillor; Murray Long, Director of Self-Government; and Maxime Faille, Legal Counsel.
At this point, I will ask Chief Bear to make some opening comments.
Darcy Bear, Chief, Whitecap Dakota First Nation: [Indigenous language spoken]
I want to say to the senator, thank you for chairing this meeting. I thank the Senate for allowing us to be here and represent our First Nation, the Wapaha Ska Dakota Oyate, to speak to this important bill.
When you look at the history — I believe that you are very familiar with it, Senator Arnot, regarding the War of 1812 and how our ancestors fought alongside the British and French, and helped to make this beautiful multicultural nation called Canada. Sadly, though, there were many promises made to our people, but none of those promises were honoured.
When they were signing treaties in Saskatchewan, Treaties 4 and 6, our chiefs, Chief Wapaha Ska also known as Chief Whitecap, who was present at Treaty 4 and Treaty 6 signings, and wasn’t allowed to enter into a treaty; yet, our Nakota brothers and sisters were allowed to adhere to a treaty.
You are familiar with the history; I know that you are. You are a former treaty commissioner from Saskatchewan. But it has been a long journey, and as far as self-government goes, Whitecap First Nation has been, over time, had our own election code, our own First Nation land management code and our own membership code. We eliminated about 35% of the Indian Act already. There are some sections that our nation wanted to keep, such as sections 87 and 91. Those are kept. That was the wish of our people. Our original votes came out for ratification with the self-government agreement — that was before the self-government treaty — and 92% and 62% showed up to vote.
Then, when we looked at changing it to a self-government treaty, that was when we talked about the acknowledgment of the Whitecap Dakota people as Aboriginal peoples of Canada. Of course, the inherent right to self-government is something given to us by the Creator — and making sure it is protected by the Constitution.
We got 100% vote in that regard. Of course, my councillors are here as well and Mr. Long. I want to thank them for the work that they have done. I want to thank the Crown-Indigenous Relations and Northern Affairs Canada, or CIRNAC, team as well for the negotiations and receiving unanimous consent from the House of Commons.
Today is National Indigenous Peoples Day, and, hopefully, this will be passed today. That is what we’re looking forward to, senator. Those are my comments. Thank you.
The Deputy Chair: Thank you very much. Are there any other councillors, Mr. Long or legal counsel, who wish to make any statement?
Frank Royal, Councillor, Whitecap Dakota First Nation: Thank you, chair. I am glad to be here and looking forward to some good discussions this afternoon. Thank you.
The Deputy Chair: Councillor Eagle.
Dwayne Eagle, Councillor, Whitecap Dakota First Nation: Good afternoon to everybody here and everybody back home. I know we get a lot of people watching online, and I would like to acknowledge them as well.
This is significant for our people. I think of my mom who comes from a treaty First Nation. When she married into Whitecap, she lost all her treaty rights. It would be nice to get them restored.
This is very important for everybody. We got our mandate, as the chief had mentioned, a 100% yes vote. That was an incredible night because our people want this. They gave us a mandate to become a self-governing First Nation and a self-governing treaty nation. This is incredible. We are going to make history today. I cannot see anyone standing in our way to achieve this. This is something that every First Nation across Canada should achieve. Thank you.
The Deputy Chair: Thank you, Councillor Dwayne Eagle.
With that then, we will move right into the discussion. We will start with Senator Sorenson.
Senator Sorensen: Thank you. It is certainly my privilege to be here today to be a part of this bill and this evening.
Under the Indian Act, Indigenous communities were deprived of the right to manage their own affairs but, despite this, Whitecap Dakota has a long track record of excellence in economic development, service delivery and land management.
Could you elaborate, Chief Bear, on what steps Whitecap Dakota has taken over the years to develop this capacity for self-government? It is a fascinating story. I am sure it will be difficult to put into a concise answer, but what made the difference?
Pardon my ignorance, but could you elaborate on what section 87 and section 91 are?
Mr. Bear: For Whitecap, it has been a journey. Again, I should also acknowledge our people back home.
I remember when I was first elected I was asked by members to come and run for our nation. That was back in 1991. We did not even have a dollar in our bank account. We had an overdraft. We had a stack of payables. There were not a lot of policies.
One of the first things we had to do was to get our financial house in order. That was about ascertaining the size of our deficit, creating a financial management plan, approaching a financial institution for debt consolidation and sticking to the plan. Once we got through that and got our financial house in order, then it was a right to an economy. Every nation should have a right to an economy.
We went on that journey. First, we built infrastructure. We built a new school and a new health centre. We started off with a small business, a store. From there, we were looking at how the Indian Act was slowing down the speed of business. It was slowing down the speed of business because in order for us to have economic development, like the golf course, we have to designate the lands for that purpose. We have to do a land surrender vote. The minister has to give approval. It is a long process. You cannot move at the speed of business.
That is when we started to look at our other options. One of the other options was the Framework Agreement on First Nation Land Management, which is a nation-to-nation agreement, government-to-government. It enabled our nation to eliminate 25% of the Indian Act and self-govern our lands and create our own land code. That had to be approved by our people, and we had 87% in favour back in those days. It has made a world of difference, moving at the speed of business.
Even when they were going to bring the casino into Saskatoon, there was a plebiscite. Whitecap was “Plan B” but because we had our land code in place, we could move at the speed of business and give the Saskatoon Tribal Council a lease for the casino building, and then the Saskatchewan Indian Gaming Authority manages it for us.
From there, we have just developed the hotel and the convention centre. We’re going to work on a thermal spa as the next project; a virtual health hub with Dr. Ivar Mendez, a world leader in regard to remote health care. He is working with us as well.
It is important to have jobs because now Whitecap Dakota First Nation is seen as a regional employer. We have 700 jobs in our community. We have 500 people commuting from Saskatoon daily to come and work within our nation. Everybody benefits. We work with everyone.
There are many partnerships with the provincial government; that is the other thing. We work with all the surrounding jurisdictions. Even when we had to build a highway to Whitecap, we knew that the province would not build a highway just to a casino, so we talked about it as a council and with my team. We said, “Let’s build a tourism corridor that goes from Saskatoon to Lake Diefenbaker.” Then we got everybody on board — the City of Saskatoon, four rural municipalities, two towns and Whitecap — and it was very difficult for the provincial government to say no. Because how many times do you see RMs, towns, First Nations and the largest urban centre in Saskatchewan working together?
Senator Sorensen: Rarely, if ever.
Mr. Bear: Out of those five phases, we actually managed three of the five phases for the province.
The Deputy Chair: Sorry to interrupt, Chief Bear. There is a technical problem here. We are going to have to suspend, but this is a compelling story, so I am going to make sure that the chief gets to tell it and answer your question fully. We are now suspending for a short time.
The Deputy Chair: Senators and witnesses, we have been advised that we can proceed with the meeting, and we will do so, because time is of the essence.
When we were interrupted, Chief Bear was just starting to answer Senator Sorensen’s question, so I’ll ask the chief to carry on and tell the story so all the senators know what they need to know to assess this bill.
The floor is yours, sir.
Mr. Bear: We were talking about Indigenous rights and the economy, and how important it is when it comes to nation building. We have to have an economy, and as Indigenous people, we have a right, like any other Canadian citizen, to have employment and job opportunities.
When we went down the pathway of getting out of the Indian Act, I think I was going to start talking about our land code. With our land code, we went through the whole process of land-use planning, zoning, development standards — everything any other jurisdiction would do. Of course, the membership had to pass that law. They did.
Every home in Whitecap actually has a civic street address, because we legally surveyed every household, all of our streets. For emergency response purposes, whether it be any kind of emergency, you don’t have to describe how to get to the house; you can actually get to the homes. That was very important to our people.
We also introduced a real property tax as well in our nation. Originally, we had to go through an Indian Act bylaw, and then once we went through the First Nation finance —
Murray Long, Director of Self-Government, Whitecap Dakota First Nation: First Nations Finance Authority.
Mr. Bear: Yes. Then we created an actual real property tax law. The province hasn’t objected to that. I noticed with some of the other self-governance agreements, the provincial government has tax jurisdiction on reserve. In Saskatchewan, they’ve been very supportive. We have a good partnership with the provincial government.
So we do have a real property tax law. We do our assessments, and we have competitive mill rates to make sure we can have businesses that want to invest into our nation.
If members want to, say, build a home in the nation, they can get a 99-year leasehold interest. You talked about being in the national parks; we’re very familiar with —
Senator Sorensen: Sing a song.
Mr. Bear: It’s the same thing with businesses: There are 49-year commercial leases, no interest — financial institutions. Because they’re all legally surveyed and registered, so they recognize the leasehold instrument, and they can get mortgages as well.
That’s very important as far as creating an economy.
That also led to other challenges. One of the things that has never been addressed is the service population. There’s not just Whitecap members who live in Whitecap. Our members marry Métis people and non-Indigenous people, and those individuals are always overlooked. In regard to health care, we have a provincial primary health care clinic in the nation, where the province actually pays for some of those services, such as an additional nurse practitioner. It enhances the services of the nation, but it also recognizes that the non-Indigenous people who are residing on our lands and living in our nation are part of our community. That’s very important.
The other thing we did is established our early learning centre. We strongly believe in education and children learning to read, literacy at an early age. There is retention. They stay in school and they finish school. We built a brand-new, 56-seat early learning centre, and it was the first time in the province’s history that they actually invested on reserve in an early learning centre. We used the provincial child care regulations so the province could put some money into capital and operating dollars. That’s also very important because we really want to make sure that our families have not just employment opportunities but that there’s good child care. When the federal government talks about $10-a-day daycare, we already have that in Whitecap.
Senator Sorensen: Wow.
Mr. Bear: Through our own-source revenues, we invest money back into the early learning centre and make sure that our people, when they have employment, that there’s a place their children can go to daycare. It’s more than just a daycare; it’s about language and culture. That’s very important to us.
With regard to our education system, we partner with the City of Saskatoon. It took them 125 years to finally recognize Chief Whitecap as one of the founding fathers of the city, so there is now a statue in downtown Saskatoon of Chief Whitecap and John Lake. They recognized John Lake in the past, but they never recognized Chief Whitecap for his contribution in picking out the actual site of the city of Saskatoon. Now there’s a statue in downtown Saskatoon twice the size of life.
Which prince was it who came? Was it Prince Edward?
Mr. Long: Yes, Prince Edward.
Mr. Bear: During the War of 1812, we were doing the bicentennial in 2012, so we created a monument in downtown Saskatoon.
I remember coming to Ottawa and talking about this bicentennial. They were saying, why are you having a bicentennial in Saskatoon when all the battles happened in Eastern Canada? We said, we know; our ancestors are from Eastern Canada, the Dakota, and they fought with the French and the British and helped make this country. We created a monument in downtown Saskatoon and told a story about the role that our ancestors played in helping to build this beautiful multicultural nation called Canada.
I was actually in Kelowna, and I got a call from the Privy Council. They said Prince Edward is going to come to Saskatoon. We sped up the process of the monument, and it was unveiled downtown. I remember him distinctly recognizing the Saskatoon area as Dakota lands. He was very clear about that.
Lots of work goes into community building, but it’s also about, I would say, making sure that our members are informed and they give leadership a mandate. We don’t just go and do things. We always make sure we speak with our people and our elders.
We actually have monthly elders lunches. During COVID, we had to buy our elders iPads so they could connect with their grandkids and do Zoom meetings, and we delivered lunches to them. It’s really important for us to always consult with our people — with our elders and our youth — even the times we go sit down with the kindergarten children. I remember one time we were there and they were telling us about the playground. I told the councillors, well, we’re going to have to put in a new playground. It will probably cost us about $100,000. It’s important to speak to even the young ones and get involved at the schools. We were in the school just recently talking with the kids.
All those things are very important for building community. We have paved roads and street lighting. All our homes now meet National Building Code standards, but there are more needs. We still have a waiting list for housing, just like every First Nation across the country. There’s a waiting list for homes. We have that same problem right now. Even with infrastructure, they always talk about addressing the gaps.
The Deputy Chair: Thank you, Chief Bear, and thank you, Senator Sorensen.
Senator Sorensen: Congratulations on everything you’ve accomplished. Much respect for your leadership and the leadership of your council for moving all of that forward in such an amazing way.
Mr. Bear: Thank you.
The Deputy Chair: I want to make sure all the senators get a chance to ask questions. Senator Patterson is next. I want to acknowledge Senator Cotter, who is sponsoring the bill in the Senate. He’s here to ask a few questions as well.
Senator D. Patterson: Thank you. I really want to welcome you on National Indigenous Peoples Day. It’s so appropriate that we’re meeting today. I’ve been on this committee for 14 years now. I think I’m the senior member.
Senator Coyle: We will concede to that.
Senator D. Patterson: Yes, still kicking. We have this great history of studying and reporting on legislation to implement modern treaties. Our best moments are when we do this work. I want to assure you, we’ve always taken the position that after long years of negotiations and the clear ratification of your members, this has to be respected.
We have rare permission to sit while the Senate is in session today. I’m confident we’ll get this done before we rise for the summer with the goodwill of all parties in the Senate. We may rise as early as tomorrow, so it’s going to take some procedural gymnastics and a few abridging of the rules here and there to make sure we get it done, but I want to assure you that there’s a lot of goodwill your way.
I’d like to ask you one question. You talked about the great progress you’ve made in developing your economy. Your treaty has fiscal arrangement provisions. Section 25 says that the parties will work together to access efficient fiscal resources to meet the expenditure needs of this agreement as it evolves over time.
I’m wondering if you can give us an idea. Have those fiscal arrangements already been negotiated? How is that coming along? How will those arrangements help make sure that you have sufficient resources to implement this new agreement?
Mr. Bear: First of all, Senator Patterson, I want to commend you on your tie with the bear.
Senator D. Patterson: Bears are good, hey? Thank you.
Mr. Bear: Great tie. As far as the fiscal arrangements, the negotiations are there, as far as I know. The effective date is supposed to be on September 1, but I’d say there’s still a lack of resources, in my own opinion, as far as dollars towards language and culture. There’s really not a discussion on the economic side of things.
As far as the Community Opportunity Readiness Program, they have a cap on it. It’s meant to be 25% of an economic development project, but they cap it out. It was capped at $3 million, and now it’s even worse than that. I think it’s down to $1 million. It’s those challenges. If you look at Indigenous rights and economy and at the non-Indigenous corporations, they’ve had an advantage over us. Some of the businesses are over 200 years old, 150 years old, 100 years old. If you look at Indigenous development corporations, like the Whitecap Development Corporation, we’re all in our first generation. We’re all 25 to 30 years old.
Those are some of the challenges. Also, the infrastructure gaps are still there as far as making sure that our nations have resources so we can invest into our communities and address those infrastructure gaps as well. The agreements can be better, but as far as for now, this is — we have finalized the negotiation. Murray, you want to say a couple words?
Mr. Long: Thanks, chief.
Yes, the fiscal arrangements could be better. We’re getting there. We have the opportunity now as a self-governing First Nation to participate in what is called the fiscal collaboration process, so all 26 First Nations sitting around the table with the federal government and negotiating as equal partners in determining what the expenditure need is in different areas. We’ve seen progress in the area of basic — the governance, the cost of governance, and making sure it’s comparable with the territories and provinces and communities, and there’s work now on culture, language and infrastructure, but there are other areas that haven’t started, like economic development. It is a work-in-progress, but it is progressing, and it’s something that the committee may be interested in looking at in the future, finding out more about that.
Senator D. Patterson: Keep us posted. Thank you very much.
Senator Coyle: Thank you very much to our witnesses for coming all the way here to meet with us today. We really appreciate it, and it’s wonderful also to know that your community is online here in solidarity with you, and I want to thank them for being here as well.
It’s important for you to know — and I think you’ve got that sense from my colleagues — that we’re here to listen to you and to support you. We’re not here in any way to put any obstacles up. You’ve had enough of those over the years, right, but in spite of those obstacles, it’s quite a story that you’re here to tell us of what you’ve been able to achieve already, even without this bill that we’re now examining.
You’ve actually answered most of what I was going to ask you, in answer to Senator Sorensen, but you’ve spoken about the economy and the effort you’ve put in there, social and physical infrastructure, the importance of the businesses, jobs, property tax, et cetera. You’re doing all kinds of amazing things in your community. I’m just wondering when this is passed and comes into effect, can you tell us if there are any big differences that are going to be made for you and your community? Is there anything that you have not mentioned to us already that you would like us to know that we haven’t asked you about, but that you want to say now, “Okay, so we really want you to pass this bill so that . . . ”
Mr. Bear: I think the biggest part of this, now that it’s a self-government treaty, is the recognition of our ancestors, my members today, the future generations that we are, Aboriginal peoples of Canada, and that should never have been taken away from us.
Senator Coyle: So the identity?
Mr. Bear: Identity is big, but also the fact that we will govern.
We’ve made provisions with the province in regard to the fact that right now, right across the country, First Nations — the RCMP will not enforce any of our bylaws or any of our self-government laws because nobody is going to prosecute them. So, in Saskatchewan, we’ve managed to negotiate a deal with the province, and they’ve amended their legislation, the Summary Offences Procedures Act, and now they’ll recognize our laws as well. It’s important to have our laws recognized because we have over a million tourists coming into our nation, and with that being said, some of them will be non-First Nations and some will be First Nations, but we have to make sure that we have the ability to actually prosecute those laws as well and enforce them. That’s another thing — it’s a first in Canada, as far as a provincial government actually working with a nation, to look at prosecuting and enforcing our laws.
We’ve always said, “If we’re going to be getting involved in self-government, then why do we want to have toothless laws?” We have to make sure our laws can be prosecuted and enforced.
We also have the Community Safety Officers, also referred to as CSOs, now. We have two under a Community Tripartite Agreement, or CTA. We have two RCMP officers living in the nation, but we’ve also now added five community safety officers, and community safety is very important to our elders, and so we have got this pilot project right now with Canada and Saskatchewan. Like I said, besides giving us the five community safety officers, they’ve also now amended legislation in Saskatchewan to make sure that our laws can be prosecuted and enforced. Again, it was something that was driven by our elders in regard to community safety. So now we have CSOs driving around.
Now with self-government coming, September 1, we can create any laws, and they can actually be enforced.
Senator Coyle: That’s important. Thank you.
The Deputy Chair: Thank you.
Senator Cotter: Thank you, chief and councillors and Mr. Long, for being here.
I’m understandably supportive of the bill, and when I read through the treaty document, it is kind of like a dream come true. Mr. Long knows that we toiled in all kinds of different ways a number of years ago, but we never got anywhere close to the richness of this. So congratulations to you and the Government of Canada.
I don’t have any specific questions about this, although I would invite you to say a little bit more about the community safety officers and the constructive link with the province. But let me come to what is my question: You have achieved pretty remarkable success in taking your nation from a pretty struggling set of circumstances to a degree of prosperity and a degree of autonomy and discipline and the like, and my question is whether this or something similar to this is relatively easily replicable by other nations? Or, do they have to have gotten to a stage where you are of advanced thinking and imagination about how to deliver the governance of your nation? And this might even be a question for the minister, but how easily replicable is this so that we can see these kinds of developments, not just in other Dakota nations, but in hundreds of First Nations across the country?
Mr. Bear: I think there’s a lot of interest. We’ve gotten calls from other First Nations in the country that have seen the self-government treaty. They think it’s the right direction to go. I know in Saskatchewan that Muskeg Lake has now started a table here in Ottawa, and I think Councillor Eagle and Councillor Royal, you were at the meeting there where I think the Saskatoon Tribal Council — they’re all very interested in proceeding with a similar treaty. The other part of this would be for the Saskatoon Tribal Council — all seven of our First Nations all have land codes, and the pilot project with the community safety officers is a pilot project with Whitecap and Muskoday First Nation in Saskatchewan, and every one of our nations in the Saskatoon Tribal Council are all interested in having community safety officers as well. With all the training they get, they have about 80% of the responsibilities of an RCMP officer.
Senator Cotter: Describe that a little bit more to Senator Coyle, because you were talking about community safety officers, where they come from, who handles that, the provincial side of the equation.
Mr. Bear: All the training is done provincially, and then they have to get certified. They can’t carry firearms or anything, but it’s all about keeping the peace, so that’s their role in the community. The positive thing is that the community can mandate what the safety issues are in our nation, and that’s very important, because a lot of times, sadly, with the RCMP — and I’m not taking a shot at the RCMP at all, but a lot of times they’re regional and they have limited human resources and they have a large region to cover, so they’re not available at all times in the nation. Every morning we get a report from our CSOs, an email letting us know what is going on in the nation. That’s really important.
As far as the process with other First Nations, we’re hoping that this is just the pilot and that it’s going to be open to other First Nations right across the country, and hopefully we’ll have other provinces that are prepared to look at what Saskatchewan did in regard to the enforcement and prosecution of local First Nation laws.
Senator Cotter: Your nation, for example, has had stable leadership for quite some time, and you are clear representatives of that. But the point of the Land Code, there are some prerequisites to really move into this area. You know what they are. The Government of Canada knows what they are. There could be guidance for others; if you want to move to this, this is the platform that you have to build first?
Mr. Bear: For the Whitecap Dakota First Nation, once we went down the pathway and developed the Land Code in our nation, we were willing to share that with other First Nations. You can also create a land code that is very restrictive and could be worse than the Indian Act. You have to be mindful of the laws you put in place. You have to want to be able to move at the speed of business. You want to make sure that any of the laws that we create allow that to happen.
Senator Cotter: It has to have been a frustration that the Indian Act shackles on development required you to be more imaginative than the typical business might have had to be in Saskatoon, or wherever, to find some economic successes. This is a comment more than anything. It is nice to see that falling away so that you can have autonomy in advancing, wisely, the use of your land for success.
Mr. Bear: One of the things that we had to explain to business as well is that if you are in the city of Saskatoon, and the University of Saskatchewan and Preston Crossing, all of those businesses are on leasehold interest lands because the University of Saskatchewan cannot relinquish its ownership of the lands. When you explain it in that regard, it is very similar to the business. Then making sure that they understand there is also infrastructure, but in order to invest in infrastructure, you also need to have development levies where other jurisdictions have development levies if there is a new area of their jurisdiction, or municipality or city where they are going to build. They would have levies on the businesses to pay for a certain part of the infrastructure, so making sure that those are in place as well.
All of those mechanisms are in place. That has led to the limited success that we have today. We have done this without being a signatory to a treaty or having the same land base. That is the other big concern. Our treaty brothers and sisters got 128 acres per person, and as Dakota, we only received 16 acres per person. There is a big difference in the land quantum.
Part of this self-government treaty as well talks about a future reconciliation treaty that would deal with that as well down the road.
Senator Cotter: You got a postage stamp of a postage stamp. Thank you.
Senator Hartling: Thank you, guests, Chief Bear. It’s an exciting day, especially on National Indigenous Peoples Day. Being a committee member, I feel so proud to be here with you today.
I wanted to say congratulations. The people back home are probably anxiously waiting for you to get back. Do you have any ceremony or celebrations planned? What are you going to do after this goes through?
Mr. Bear: We will work it out with our community for sure as far as having a community celebration. We have to get this work done first. Hopefully, you will move this forward for us tomorrow and then we can take some good news home to our people. It would be great, especially in the month of June with National Indigenous Peoples Day and moving this forward. Absolutely, we will work with the community on it, a community celebration and ceremony.
Senator Hartling: Well done. We will look forward to seeing what happens next. Thank you.
Senator LaBoucane-Benson: Thank you. I am sorry I was late. The chamber is interesting right now, a number of things going on.
I want to thank you, Chief Bear, for being here. I know that you were not at the House. You look healthy right now. I know that getting here was a bit of a chore.
There is a lot in this bill that is monumental. The first thing I want to ask you is about finally being recognized as an Indigenous nation in Canada, and at the very same time getting to walk away from large parts of the Indian Act.
My first question is about the negotiations with the federal government and the process that you undertook in recognition of your nation. That is something that stands out for me. It was just the preamble. It was not even the best part of the bill.
Mr. Bear: For myself and the council, after our community ratified the vote October 7 with 92% in favour, we came to see Minister Marc Miller on October 17. I reminded him back in 2018, that Minister Bennett came to Saskatchewan and signed an MOU in regard to creating a Whitecap Dakota Treaty, finally recognizing our ancestors for the role they played in building this nation.
The other thing to be mindful of, many First Nations had land on both sides of the border. After the War of 1812, you have the Treaty of Ghent and 1818 is when they created the 49th parallel. This recognition as Aboriginal peoples of Canada is really important for our people and our members back home. As I said, it should never have been taken away from us to begin with. We had lands on both sides of the border. There was a map used in a Supreme Court case, the Arrowsmith map that shows territories on both sides of the border that the Dakota had occupied. Sadly, it was never recognized.
Growing up in Whitecap in the Saskatoon area, a lot of times we were treated as second-class First Nations, lesser of a First Nation because you guys are not treaty. But if we didn’t help to make Canada a nation, they would not be able to sign any treaties. That is something that is really important to remember. Canada is 1867, right? The War of 1812 is back then. We helped make Canada a nation but they left us out.
Senator LaBoucane-Benson: Except with all of the regressive policies that they seem to capture you in . . . .
I have been with the Government Representative’s office for three years. I have never had senators fighting to be the sponsor of a bill before, and this is a first for us. There was almost arm wrestling going on to see who would get to sponsor this bill because this bill is so monumental and everybody wants to be the one sponsoring this; not so many other bills, but this one, for sure.
Senator R. Black: I lost.
Senator LaBoucane-Benson: No, you won. It could be that too. I do not know. I would have arm wrestled for it. This is a good bill.
I am struck by how you live those relationship teachings. At least in the Cree tradition, we have so many teachings about how we are supposed to act in a relationship. Somehow you have cracked the provincial relationship code. What was your strategy for building relationships with the province in ways that has resulted in such success in your partnership with the province?
Mr. Bear: The word “Dakota” actually means ally. We were talking about when our nation had no resources, we spoke about how we have to work with everybody in the area, with the cities, towns. It does not matter who is in power provincially, federally, we all need to work together and that is the only way that we will advance as far as the nation itself to give an opportunity for the people.
For example, before Brad Wall was even a premier, he used to come and visit and we would have talks. We became really good friends. He is still a good friend to this day. I believe that he made a couple of call-outs for us to the opposition. And Senator Cotter, you are sponsoring. Senator, you won the arm wrestle obviously.
Senator LaBoucane-Benson: Really tough. Thank you very much. It is an honour to be here. I want to congratulate you all for the work you have done.
Mr. Bear: One more thing on the province, Premier Scott Moe as well. Don Morgan was in our riding at once, and he never used to win the Whitecap riding. He wanted me to go with him door to door, and he introduced me as his brother from another mother and he ended up winning it. Our members know that story because we were door-knocking.
Senator LaBoucane-Benson: It is true that all good things come through relationships and you exemplify that. It is lovely to see. Thank you.
The Deputy Chair: Chief Bear, I will ask a question that was raised yesterday in the Senate and it is about membership.
I see both in this treaty and in the bill that you have the ability to determine who is a member of your nation as opposed to relying on the Indian Act. Would you like to comment on that? Councillor Eagle spoke about an important issue related to that. His mother lost her status as a treaty First Nations person. Is there is anything you would like to say about that in the absence of Senator Audette, who asked the question? That might be helpful.
Mr. Bear: The only unfortunate part is that yes, we have the ability to have our membership code, but sections 6(1) and 6(2) of the Indian Act still apply to us. We can say who is a member of our nation but we still have to go through the process of sections 6(1) and 6(2) of the Indian Act.
I’ll give you an example. Senator Littlecrow’s great-granddaughter has lost status. She’s no longer First Nation. How can that happen? If we are supposed to be determining our membership, we should be allowed to determine who our members are. How can someone like Senator Littlecrow’s great-granddaughter lose status?
The way the system works, if you are a First Nation and you are a section 6(1), you can pass status. But if you got into a relationship with a non-Indigenous person then that child becomes a 6(2). However, if that child gets into a relationship with a non-Indigenous person, then the next child will have status. That must be addressed.
The other thing that needs to be addressed is about service population. Who is living on our lands? Who is residing in Whitecap? They shouldn’t be left out of the funding formula. They should be included in the funding formula because we are providing services. They are residing in our community. As Councillor Eagle said earlier, prior to 1985, Bill C-31, women were automatically transferred into our nation. My late Aunt Catherine was from Caswell. My Aunt Annie Cook was from Lac La Ronge Indian band. However, because they transferred to Whitecap, they are no long treaty First Nation women. That impacts their children. They’re not treaty. Their grandchildren are also not treaty.
Hopefully, some of these things can be resolved in the future regarding the impacts of 6(1) and 6(2).
The Deputy Chair: Those wrongs are yet to be remedied is what you are saying.
Senator Dalphond: Thank you. I’m here for Senator Audette. The question she wanted me to ask was asked by the deputy chair.
First, I want to thank you for being here and to congratulate your achievement with these negotiations which started in 2009. It is now 2023 and it’s almost done, but Royal Assent is still missing. I want to congratulate you on your hard work and perseverance.
My questions will follow on the questions of Senator Arnot. They are about how you see the relationship between the Indian Act provisions that still remain applicable like section 6(2). As you said, section 6(1) is a problem, so that will have to be fixed by an amendment to the Indian Act. My question was about that. What about the property? I see you have the right to make law about reserve lands, but it remains subject to the Indian Act and the restrictions found in sections 87 and 89 of the Indian Act, unless you exercise some of your authority. Do you think that is going to prevent you from developing a unique model?
Mr. Bear: No. The reason those sections still remain is that it was a community decision. Our members wanted to make sure that reserve lands were still reserve lands. They still wanted income tax exemptions.
Going forward, perhaps those can also be amended. Section 87 can remain for people living on our First Nation lands who are not paying provincial or federal income tax. I think that is fair if you look at intergenerational wealth with regard to individuals and how, as First Nations people, we didn’t get the opportunity to buy up real estate and hand it down from generation to generation. The non-Indigenous people were able to do that, though.
The income tax exemption needs to remain in order for us to catch up. We haven’t caught up yet. Even our corporations are first generation.
Senator Dalphond: You don’t see that as an impediment to you from developing your own concept?
Mr. Bear: No, it will not impede us, but it would be great to amend some legislation so that we don’t have to be part of the Indian Act to have the tax exemption on reserve.
The Deputy Chair: We are going to have to shut down in a few minutes so that senators can go to the chamber to vote.
Senator Cotter: This is not really a question. In observing the kind of discipline and responsibility that you gentlemen have led your First Nation with, I think about Senator Hartling’s question as an analogy. She asked if you have a big celebration planned. As I understand, chief, you said that the time will come but right now you have this work to do.
I have had some experience at the Dakota Dunes golf course. This is my point — not how bad my golf is, but Whitecap Dakota built a world-class golf course. It was the best new golf course in the country when it was established. When they build golf courses, a lot of places around this country build grand cathedrals with clubhouses. You have seen those in a lot of places. That’s often why a lot of golf courses go bankrupt. The Willows in Saskatchewan is a good example. At Whitecap Dakota, it felt that for a number of years the golf club had a classy golf course. It was run out of almost — I don’t want to call it a shed but a trailer almost. You gentlemen will agree that it was very modest until the financial and fiscal foundation for the golf course was secure and then you built a more modest but still substantial facility. I have always been impressed with that small example of the discipline that you showed in building not only the business enterprises but also the community as a whole. When Senator Hartling asked about the celebration, I was reminded of that. Your reply was, “We will get there, but we have other work to do first.” This is really a congratulations to you that you have gotten to this point over decades — not just the recognition of the nation, and so on, but having built an economically stable and much more vibrant community than you inherited years ago. That’s to your credit and to the credit of the people of the nation. I hope they appreciate all you are achieving on their behalf.
The Deputy Chair: Thank you to all the witnesses here. I’m sure you read that there is a lot of support for what you are doing. I believe that Whitecap Dakota is an exemplar model for all of Canada. The way you have done things, not only your leadership but also this particular bill and the treaty that you have entered into. You have been cutting a path in the snow and you continue to do that and show leadership. I’m sure it is going to be a template for the rest of Canada.
I want to acknowledge elder Malvina Eagle, whom I know. I know she gives you a lot of guidance. She gave me a lot of guidance when I was treaty commissioner. I also want to acknowledge the late elder Mel Littlecrow, who isn’t here but we talked about him, a powerful elder.
With that, I thank you Chief Darcy Bear, for your leadership; Dwayne Eagle, Councillor; Frank Royal, Councillor; and Murray Long, a long-term civil servant with First Nations in Saskatchewan and certainly with Whitecap Dakota. Thank you for coming here today and explaining your interest in this. We will work hard to make sure this comes to reality.
We will suspend for the vote until six o’clock and then return.
(The committee suspended.)
(The committee resumed.)
I would like to now welcome our second panel of witnesses. We have with us The Honourable Marc Miller, P.C., M.P., Minister of Crown-Indigenous Relations. Accompanying the minister from Crown-Indigenous Relations and Northern Affairs Canada, Martin Reiher, Senior Assistant Deputy Minister, Treaties and Aboriginal Government. Thank you for joining us here today, witnesses.
Minister Miller will be providing opening remarks of approximately five minutes, which will be followed by questions and answers initiated by the senators. There are additional government officials who are in the room today, and they will be pleased to assist the minister in answering any technical questions that the senators may have. I now invite Minister Miller to give his opening remarks, sir.
Hon. Marc Miller, P.C., M.P., Minister of Crown-Indigenous Relations: Hello, everyone. Before I begin, I would like to acknowledge our presence on the unceded traditional territory of the Algonquin Anishinaabe people. Senators, I’m very happy to be with you here today to speak on Bill C-51, An Act to give effect to the self-government treaty recognizing the Whitecap Dakota Nation/Wapaha Ska Dakota Oyate and to make consequential amendments to other Acts.
As you know, chair — better than most of us — this bill has been a long time coming. In a sense, you could say that it has been in the making since 2009, and perhaps even before. It is when Canada began working with Whitecap Dakota to complete a comprehensive self-governance treaty that recognizes Whitecap Dakota as a self-governing entity with jurisdiction and authority over a broad range of authorities. In another, more accurate sense, it has been in the making for generations.
The Whitecap Dakota has a long history of self-governance that existed before the arrival of my people in what today is known as Canada. This was undone by successive federal laws and policies, most notably the Indian Act. Whitecap Dakota has realized a number of important gains over the years to remove portions of the Indian Act through instruments such as the First Nations Land Management Act and First Nations Fiscal Management Act.
The bill we’re discussing today moves further than that. It ends the Indian Act governance over Whitecap Dakota. It formally acknowledges that Whitecap Dakota is one of the Aboriginal peoples of Canada and holds an inherent right to self-government that is protected by section 35 of the Constitution Act, 1982.
As a more general point, it is important to pause here and speak about what we are talking about today when we are talking about the recognition of section 35 rights. It is the recognition of a very basic dignity, which is the existence of the Dakota and Lakota peoples, the nine communities, the nine oyates, that comprise the Dakota presence in Canada. Their homelands have long been denied to them, and it resulted in them being treated as second-class First Nations. It is a stain on Canada’s history, and it’s one that is only now being removed through the advocacy of those nine communities, including Whitecap Dakota. An example of that is the self-governance agreement that we are discussing today and, hopefully, respectfully, passing in the Senate in time for the September timeline of which you are well aware.
Again, this is an indignity that has been levelled on the Dakota/Lakota peoples treated as immigrants in Canada or as refugees, which is an insulting word given that they own the lands. The indignity is one that is ending. As a basic matter, it is important to have Canada recognize the Dakota and Lakota peoples as Aboriginal peoples of Canada because there are legal rights that flow from it, but I would hasten to say that they know exactly who they are and, in principle, do not need Canada for that because it is not up to Canada to determine who is and who is not in the identity of Indigenous peoples. It is for them, themselves, to determine.
This agreement does an important thing; it puts the decision-making power back into the hands of this Indigenous government to make their own choices about how programs are delivered and services are provided to the community. It establishes a new nation-to-nation relationship between Whitecap Dakota in Canada. It sets out practical mechanisms for intergovernmental cooperation. It is the next step to revive self-governance and self-determination for the Whitecap Dakota people.
Mr. Chair, I know you have heard from senators about the history of the Dakota/Lakota people. You’ve heard from Chief Bear and councillors here today that these people have been here, as I mentioned earlier, from time immemorial and continue to contribute to Canada.
When I visited Whitecap Dakota this spring, I had the opportunity to see the impacts of their vision, the determination and efforts of the community due to the leadership of Chief Darcy Bear. From the golf course to the Dakota Dunes Resort, supported by Indigenous Services Canada’s Community Opportunity Readiness Program, to their casino, Whitecap is a strong example of the importance of self-determination of Indigenous communities across Canada.
[Translation]
This self-government treaty is the result of some 12 years of long and painstaking negotiations in cooperation with Canada. Throughout this process, Canada worked closely with Whitecap Dakota Nation leaders to ensure that the final document reflected the community’s own vision of self-determination. This process culminated in April, when the Whitecap Dakota community reached unanimous consensus on the treaty.
If the bill we’re discussing today passes, an order will confirm the effective date of the governance treaty, which will be September 1, 2023.
Therefore, the Whitecap Dakota government would obtain full and complete jurisdiction and authority over the basic governance functions, including elections, membership, citizenship, taxation, administration and enforcement of Whitecap Dakota laws; lands, including land and natural resource management, public works, infrastructure and services; regulations, including licensing, regulation and operation of businesses, and economic development; programs and services, including child and family services, education, health, language and culture.
[English]
Throughout this treaty, Whitecap Dakota reaffirms their full jurisdiction over these areas of governance. It’s about reclaiming the powers and abilities that were eroded by decades of colonialism and racism embodied in the Indian Act and government policies.
This is a forward-looking treaty that allows the First Nation to make decisions that will impact future generations based on their own culture, their own history, their own priorities.
When this bill is adopted, Whitecap Dakota will be able to enact laws to set out how it will manage its own resources, promote and enhance its culture and build on its economic development successes for the community, with full transparency and accountability to its members. Because this self-government treaty is the first that Canada has struck with a First Nation in Saskatchewan, it complements existing agreements between Whitecap Dakota and the Province of Saskatchewan.
The Deputy Chair: Honourable senators, with leave of the committee and pursuant to rule 12-20(4), I move that the committee dispense with clause-by-clause consideration of Bill C-51 and, further, that the bill be reported without amendment to the Senate at the earliest possible opportunity.
Is there agreement to dispense with the clause by clause?
Hon. Senators: Agreed.
The Deputy Chair: Is there agreement to report the bill as unamended to the Senate as early as possible?
Hon. Senators: Agreed.
The Deputy Chair: Thank you very much.
(The committee adjourned.)