Proceedings of the Standing Senate Committee on
Issue 5 - Evidence, March 1, 2000
OTTAWA, Wednesday, March 1, 2000
The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill C-9, to
give effect to the Nisga'a Final Agreement, met this day at 6:00 p.m. to give
consideration to the bill.
Senator Jack Austin (Chairman) in the Chair.
The Chairman: Colleagues, I see a quorum. The first item of business is for the
committee to authorize a budget. You have before you a summary of the expenditures of
$9,500. This is a very routine and standard item, one that was not enacted when the
committee was organized in the fall. We need to have this authorization for the fiscal
year ending March 31, 2001.
Senator Andreychuk: Mr. Chairman, is this to cover these hearings on Nisga'a?
The Chairman: This is for after April 1.
Senator Andreychuk: After April 1, and it is contemplated for what purpose?
The Chairman: Legislation.
Senator Chalifoux: I move adoption of the budget.
The Chairman: Is it agreed, honourable senators?
Hon. Senators: Agreed.
The Chairman: Carried. I will just sign it and it will be on its way.
Honourable senators, we have a number of important witnesses tonight. Our first is Mr.
Welcome to the committee, Mr. Georgetti. You understand that we are conducting a study
of Bill C-9, to give effect to the Nisga'a Final Agreement. Speaking as you do for the
house of labour, we welcome your participation.
I understand you have a brief, so I invite you to proceed.
Mr. Ken Georgetti, President, Canadian Labour Congress: Honourable senators, let me
start by thanking the committee members for giving me the opportunity to address you on
such an important issue. I should point out that I have had the fortunate opportunity to
present on behalf of the labour movement both in British Columbia and now in Canada to all
three committees that have studied this agreement. I can tell you that we view the Nisga'a
Final Agreement as one of the most important social and economic developments of the last
century. The officers and the executive council of the 2.3 million members of the Canadian
Labour Congress fully support this negotiated settlement of a long-standing aboriginal
The Canadian Labour Congress and our provincial federation of labour in British
Columbia have been on record, for more than 30 years now, supporting the resolution of
land claims. In particular, we are strongly supportive of negotiated settlements as
opposed to litigation and court-imposed ones. At our last convention, Nisga'a Chief Joe
Gosnell was warmly welcomed by delegates when he spoke about this agreement in principle
and the need for support to reach a settlement in negotiations.
It is important to move beyond the rhetoric of those who in opposing this treaty try to
characterize themselves as speaking on behalf of ordinary working families. The Kitimat,
Terrace and District Labour Council, the workers who will live with this treaty and who
are neighbours of the Nisga'a, have been active supporters throughout the process. This
past June, the Canadian Labour Congress executive council unanimously endorsed the treaty.
The union representing unionized forest industry workers, IWA Canada, also endorsed the
treaty at their convention last year.
However, I want to express the frustration we see at the significant delay in having
the agreement ratified by Canada. It is now over 100 years since the Nisga'a chiefs and
elders first went to Victoria, British Columbia and to England to seek a just settlement
to their land claim. It is over a quarter century since the Supreme Court of our country
ruled on the Nisga'a case and serious negotiations finally began. It is over four years
since the agreement in principle was reached. Hundreds of Nisga'a have been born, grew up,
and died waiting for Canada to do the honourable thing. Finally, Canada and British
Columbia did just that by initializing the final agreement on August 4, 1998 -- just under
19 months ago.
The time has come to move on and remove the obstacles to implementing this very
important treaty. The Nisga'a themselves were the first to ratify, after significant
consultation and a vote involving all adult members of the Nisga'a Nation. It was ratified
by the legislature of British Columbia after the longest debate in British Columbian
parliamentary history. Over 100,00 copies of the final agreement were distributed to the
citizens of British Columbia. Both the provincial legislature and the House of Commons
held public hearings in B.C.
This is not the time for narrow partisan interests to drag this matter out in the hopes
of undermining an agreement reached by all parties in good faith. This is not the time to
once more send a message to our aboriginal brethren that we in the dominant culture simply
cannot be trusted to respond in a fair and equitable manner to a legitimate claim over a
century old. The question we ask is this: Would you rather see this matter litigated? I
remind you that in 1974 the Supreme Court of Canada came within one Justice, one single
vote, of ruling that we would not need negotiations and that the Nisga'a had title. The
elected representatives of the people of British Columbia and of Canada and the Nisga'a
people themselves have ratified this agreement, and it is time for the Senate to do
I know you are familiar with the treaty, but I would like to go through some of the
highlights of the agreement with you and tell you why we believe this is a good agreement
for Canada, the Nisga'a, and the working families in British Columbia.
This will allow the Nisga'a to build an economic base in their community and end 100
years of dependency. Economic self-sufficiency will lead to improved standards of living
for the Nisga'a people. By settling the land issue, investors and job creators will
finally have some certainty about where they can invest to create jobs in a region that
badly needs them.
One of the criticisms of the treaty you are probably hearing is that there was not
enough consultation. I was part of that consultation committee since it started. Labour,
business, municipal councils and communities were all at the table in the most extensive
consultation process we have ever witnessed in British Columbia. Frankly, if we had had
that kind of consultation around NAFTA, I think things would look quite different in
Canada today. All of these groups had representation at the treaty negotiations advisory
committee and its subcommittees, which met five days a month for the last six months as
the heavy negotiations went on. The forestry negotiator and the province met with the
regional forestry advisory committee in Terrace every two weeks for many months. I believe
the Nisga'a agreement achieves the goals of fairness and equality for all parties.
Much has been made of the amount of land involved in this agreement, but let us put
this into context. It involves 1,992 square kilometres of Nisga'a lands and 22,000 square
kilometres of traditional territory, which is 8 per cent of what they asked for,
two-tenths of 1 per cent of the land mass of British Columbia. It guarantees access for
recreation, hunting, fishing, and resource extraction. If all treaty settlements were to
follow this pattern, they would affect no more than 5 per cent of British Columbia's
The agreement on taxes represents a major change in position by the Nisga'a that has
not received enough recognition. Income tax will be phased in over 12 years and sales tax
over eight. This is a significant and difficult step for the Nisga'a, and they have faced
a great deal of criticism about this clause from other First Nations waiting to negotiate.
The amount of cash involved is not that exorbitant, considering the century-long
attempt by the Nisga'a to receive compensation for their lands: $190 million over 15
years. A KPMG study found that the cost of negotiating and implementing all treaties
across the province would work out to about $35 per year per household. On the Nisga'a
settlement, it works out to $16.50 per British Columbian paid out over a period of 15
years. Another important part of this agreement is that, for the Nisga'a, the Indian Act
will be phased out. By the year 2000, it will cost $11 billion annually, and it does not
work. It is degrading and insulting, and this is a positive development.
One of our major concerns, of course, was the general area of employment and labour law
and their applicability. Nothing in this agreement affects labour relations, employment
standards, human rights, or occupational health and safety standards. It is not clear
whether the federal or provincial code will apply, but since Nisga'a lands will be fee
simple we think there is a better argument that provincial statutes should apply.
A major issue for labour and business, and one discussed at many meetings of the treaty
negotiations advisory committee, was that of "certainty". One of the positive
aspects of treaty-making is that it does eliminate uncertainty. The Nisga'a agreement in
principle and the subsequent treaty clearly define aboriginal rights. It sets out the
relationship between government rights and treaty rights. The treaty settles issues of who
has the right to what and allows investment and employment opportunities to happen.
For British Columbians in general, and many unionized workers in particular, forestry
is a critical issue. The proposed treaty addresses the issue more than adequately. It is
business as usual for five years. There is a requirement to meet or beat all provincial
forest practices. There is a commitment to supply local mills with fibre for 10 years, so
they will not build their own mill for 10 years. The approvals process seems to be better
than what exists today, and the final agreement provides better protection for workers
than we have historically seen from companies.
One of the most contentious issues over the past decade in British Columbia has been
the relationship between aboriginal rights and other fishing rights. The proposed treaty
addresses this issue as well. The provisions are complex, but we are convinced that
fishermen's interests have been taken into account. It appears to be an improvement over
the aboriginal fishing strategy because the Nisga'a cannot sell fish if no one else is
I said in the beginning that this treaty is the result of decades of negotiations and
that, on the whole, it is a good agreement. Certainly an experienced negotiator, as I am,
can pick apart any collective agreement, treaty or convention. You will always have some
things with which you do not agree. This has been long fought for, and the negotiated
treaty is really about fairness. That is something that we in the labour movement proudly
endorse. We think all Canadians should be celebrating the end of uncertainty and
unfairness and the beginning of a new relationship that makes us all equals.
Mr. Chairman, as someone who has been involved in this process for the past 10 years
and as a representative of 2.3 million working Canadians, I thank you and the Senate for
giving me the opportunity this evening to provide you with our perspective.
Senator Grafstein: Let me start with your last sentence. You say it makes us all
equals. For years and years, and I assume it has not changed, the Canadian Labour Congress
has been concerned with minority rights.
Mr. Georgetti: Yes.
Senator Grafstein: Have you examined this treaty and the activities of non-Nisga'a and
Nisga'a residents on Nisga'a lands through the prism of minority rights?
Mr. Georgetti: I cannot say that we have examined it through that prism, but we have
examined the issue in terms of the rights of non-residents and non-Nisga'a on Nisga'a
land. We are satisfied that the application appears on the surface to be fair and has the
ability to stand a test of the challenge on that issue.
Senator Grafstein: We were told, Mr. Georgetti, that the non-Nisga'a residents, who
essentially do not own those lands, have the right to participate and be heard but they
really do not have the right to vote, even though they would be a distinct minority and
could never overwhelm the majority, the majority being the Nisga'a. I believe the numbers
are roughly 100 to 5,000 or 6,000.
Mr. Georgetti: Right.
Senator Grafstein: The members of the Nisga'a who reside outside the lands have full
voting rights, and I do not quarrel with that. I wonder what your perspective is on that.
Mr. Georgetti: The application of this treaty sets out a structure for the
administration of land that belongs to the people called Nisga'a. The treaty contemplates
that the only people who have the ability to make decisions on the application of that
land are the people who own the land, namely, the Nisga'a. We find that to be acceptable.
The rights of those non-residents or non-Nisga'a residing on those lands are taken care of
in the agreement to the extent that they have a right to participate and stay and remain
on those lands. That is to say, they have a right to participate in the debate but not
vote on the ultimate outcome.
Senator Grafstein: You find that satisfactory from the perspective of the Canadian
Mr. Georgetti: Yes.
Senator Grafstein: You spoke about the clarity of the agreement and then you mentioned
uncertainty. You said that it is not clear whether the federal or the provincial code will
apply, referring to the labour code. However, since Nisga'a lands are in fee simple, the
provincial statute should apply. Tell me about that. I am not too clear about that and,
until I read your brief, I had not thought about that as an issue. I do not consider it an
issue, but I am interested in your view.
Mr. Georgetti: The application of the labour code now in the province is dependent on a
set of standards. If it is in the area of transportation, it is likely the federal code.
Outside the Nisga'a lands, there have been many arguments concerning which labour code
applies. We have had neither jobs nor industry locate there, but we would argue concerning
the applicability of the correct code.
This is still not certain because we have not reached that step yet. It is a normal
argument that exists inside most provinces where there are overlapping or conflicting
jurisdictions in areas of the labour code.
Senator Grafstein: Under their constitution, would not the Nisga'a have the right to
amend a labour code to apply to activities within their jurisdiction?
Mr. Georgetti: No. That is not a feature of that agreement. We were very concerned with
that. It is a feature of the agreement that we sought and received with the cooperation of
The Chairman: I will not ask you, Mr. Georgetti, which jurisdiction you would prefer; I
will simply move on to Senator Beaudoin.
Senator Beaudoin: First, on the subject of sales and income tax, you conclude that this
is a significant and difficult step for the Nisga'a, who have faced much criticism about
this clause from other First Nations. Could you elaborate more on that?
Mr. Georgetti: At this point, aboriginal peoples working on aboriginal lands do not pay
income tax or sales tax. A number of aboriginal groups who are in the process of
negotiating feel that that is a feature they would like to keep and an aspect of Canadian
tax law that they would like to see in place. In this agreement, that was negotiated to be
phased out. The Nisga'a agreed that they should participate in the revenue generation of
Canada and enjoy the social services that Canada has in equal measure to Canadians. That
is a major step and one that has, in my experience with the aboriginal leaders with whom I
interact in British Columbia, received much criticism. It was an important issue to which
the Nisga'a agreed. However, they would have preferred not to see it included.That is the
same argument made by many Reformers, who do not like to pay income tax as well.
Senator Beaudoin: My second point concerns the question of the territory. I am glad to
see that it is two tenths of 1 per cent of the land mass of B.C. I have heard many other
figures on this, but that is what it is.
Mr. Georgetti: Yes. Much of that land mass contains mountain tops and other things like
that, but it is not all usable land mass.
Senator Beaudoin: If all treaty settlements were to follow this pattern, which is a
possibility, it would affect no more than 5 per cent of B.C. This may be some kind of
precedent. I do not have any problem with that, but what about the situation in other
provinces, for instance, in the west part of the country?
Mr. Georgetti: Senator Beaudoin, this is the first modern day treaty that we have
negotiated. In some way, it will establish some precedents in some areas -- at least, I
hope that it will. I do not know if you can apply it to other provinces, but I have heard
the argument glibly expressed that a claim is being made for 110 per cent of the land mass
in British Columbia. That might be true, but there is a difference between a proposal and
a suggestion and the ultimate outcome.
The ultimate outcome of the Nisga'a agreement represented what we said. If it were to
establish a pattern concerning what the province and the federal government were prepared
to release back to the aboriginal communities for their land claims, then it would be the
decisive factor. I am not equipped to answer your questions about the other provinces.
Senator Beaudoin: I did not raise that question because of the geographical question.
It is not a question of 5 or 6 per cent; it is a question of justice. If they have those
rights, then they have those rights. I cannot agree more on this subject.
I wish to thank you for bringing those facts to our attention because they are not well
known. My first reaction is that it sounds reasonable.
Mr. Georgetti: Imminently.
Senator Sibbeston: Mr. Georgetti, you told us that you have been involved in this
process for at least 10 years. Have you personally been in the communities of the Nisga'a
people and seen the minorities -- that is, the few non-native people who live there -- and
their state at the present time?
Mr. Georgetti: I have not been in a position to meet any of the non-Nisga'a on Nisga'a
Senator Sibbeston: The issue of minority rights has arisen here. Senator Grafstein
raised it with Mr. Fontaine yesterday morning, and he initiated that discussion again with
I come from a small aboriginal community. One of my experiences is that, generally, the
few non-native people who live amongst the native people are professional people -- for
example, doctors, nurses, teachers and administrators. Generally, they have jobs and are
in a position of power in the community. I have never had a situation where non-native
people living amongst native people have either been in a position of non-power or have
had their rights threatened in any way. They often hold positions of power. When Senator
Grafstein questions and raises concerns about minorities, I often think that it is
academic. In reality, the few non-native people who would be living there would not be
people who are there for a holiday. Generally, they are there because of the jobs that
they hold. These would be the RCMP officers and teachers, and so on, as I have said.
Generally, they are reasonably financially well off and their rights are never questioned.
In fact, they are seen, generally by the aboriginal population, to have more power and
more rights than the aboriginal people themselves.
Is this true in the case of the Nisga'a? When we talk about minority rights, it is
academic. In reality, it is not something that we should be worried about. If you have not
been in the Nisga'a communities, it is hard for you to address that. However, if you have
any feelings on the subject I would be interested in hearing them.
Mr. Georgetti: I am not aware that there has been anyone representing that group of
non-Nisga'a living on Nisga'a land to make representations against this agreement. If that
were a big concern, I think you would hear from that group in these hearings. They may
have done so but I have not heard of it.
The Chairman: Mr. Talstra, the Mayor of the City of Terrace, will appear this evening.
His is the largest community near Nisga'a lands. We will also hear Mr. Bill Young, the
owner and operator of Tillicum Lodge. These are people with experience in the area. We can
address these questions to them.
Senator Tkachuk: Can you cancel this agreement? Can the Government of Canada cancel it?
Mr. Georgetti: I do not know.
Senator Tkachuk: We are often told that this agreement is like a treaty, but it is not
a treaty. You mentioned NAFTA, but the Government of Canada can cancel that agreement with
six months' notice. Under this bill, they cannot do that.
Mr. Georgetti: I would hope it is final and binding.
Senator Tkachuk: It is final and binding and cannot be cancelled.
Mr. Georgetti: I would agree with that.
Senator Tkachuk: We are required then to take our time and study this bill carefully
because there is no way to get rid of this agreement once it is done.
You mentioned that income tax will be phased in over 12 years and sales tax over 8
years. I want to ensure that the language is correct there. Are you saying that, next
year, Nisga'a residents will begin paying tax? Are you saying that it be phased in over 12
years? Or are you saying that will they not be paying tax until 12 years from now?
Mr. Georgetti: My understanding is it will be phased in over the next 12 years by a
Senator Tkachuk: So they will be paying in next year and the year after and the year
Mr. Georgetti: I do not have my table here.
Senator Tkachuk: This is important.
Mr. Georgetti: By the end of the twelfth year, they will be paying full income tax.
Senator Tkachuk: I thought it would be provincial tax in eight years and federal tax in
12 years and, in 8 years, an 8 per cent sales tax. My impression is that the phase-in
period begins in year 8, not in year 1. Do you have the facts to back that up?
Mr. Georgetti: I do not have my tax tables here, but it is a phased-in process on both
the sales tax and the income tax.
Senator Tkachuk: I have a question about the figure of $35 per household for all
communities across the province. The Nisga'a settlement works out to $16.60 per B.C.
household. Is that the provincial portion, the federal portion, or both portions?
Mr. Georgetti: I am quoting from the KPMG study in the first sentence. The second
sentence is how the Nisga'a settlement works out when amortized over 15 years to pay for
the Nisga'a settlement for British Columbians.
Senator Tkachuk: So that is for the British Columbia portion and not the federal
Mr. Georgetti: No. The federal portion is constant forever, at a tax charge of $35 per
Senator Tkachuk: That is forever, for as long as the country lasts?
Mr. Georgetti: I believe that to be correct.
Senator Andreychuk: You seem to imply that the Nisga'a people have waited a long time
for this agreement, and I very much agree. We should have dealt with land claims
immediately. I have no dispute there, but I hope you are not implying that the Senate
should not do its proper job of analyzing and assessing this bill. There is an educational
value, which has not been addressed in the other place nor in British Columbia. There are
many misconceptions about what this agreement is and is not. I believe the Senate has a
role to investigate all the aspects, to ensure that it does comply with the law.
I disagree with my friend; these are not academic issues. We are here to examine the
legal implications and that is important, but there is also an educational value here. I
would like it on the record that I hope you are not disagreeing with the Senate's right to
ask questions and make certain that we understand what this agreement is about.
Mr. Georgetti: If I implied that, I did not mean to do so. These hearings are part of
the process on which all parties have agreed. I encourage the Senate to ask the questions
and get the clarification you need as quickly as possible. We are waiting for the proud
moment when this treaty becomes final and binding law forever.
The Chairman: Thank you, Mr. Georgetti, for attending here and for presenting your
views to us.
On the tax question, Senator Tkachuk, let me refer you to the Nisga'a Final Agreement,
page 218, paragraphs 7, 8 and 9. Transaction of taxes begins as of the first day of the
first month after the eighth anniversary of the effective date; that is the date when
Parliament proclaims the legislation. All other taxes take effect as of the first day of
the first calendar year that starts on or after the twelfth anniversary of the effective
Senator Tkachuk: That was my understanding. He said it was phased in over eight years,
but, in reality, it starts in year 8 and the other taxes begin in year 12. There is not
really a phase-in period. That is clear for the record.
The Chairman: The 8- or 12-year countdown starts once the bill becomes law.
I now call the Tsimshian hereditary chiefs to the table. You are neighbours of the
Nisga'a. You know them well. We are aware that you were not able to appear before the
House of Commons committee. This is your opportunity to present your views and advice with
respect to the Nisga'a Final Agreement. Please proceed with your evidence.
Mr. Robert Hill, President, Tsimshian Tribal Council: Mr. Chairman, the Tsimshian
Tribal Council has been elected to be the spokesman for the hereditary chiefs of the
Tsimshian Nation. I believe it is important to explain to honourable senators our
authority to speak on their behalf.
First, I thank you for this opportunity. It is indeed a pleasure to be in your house. I
will do my best to offer the Tsimshian Nation's support to the issues at hand,
particularly the Nisga'a Final Agreement.
By way of background, my authority to speak on behalf of my chief is through the use of
the talking stick. We liken the use of that talking stick to the mace of the respective
governments in British Columbia, in the House of Commons, and in the Senate.
At every annual assembly, the hereditary chiefs pass that stick to me, giving me the
power to speak on their behalf. Of course, when the time comes for our gathering, I must
account for every action that I take on their behalf. This gathering of senators reminds
me a great deal of the gathering of the hereditary chiefs. I feel very privileged to be
here to speak on behalf of the Tsimshian Nation.
I should first like to introduce Mr. James Bryant, whose Indian name is Gil ax aks, who
has been with me since I was elected president of the Tsimshian Tribal Council. Mr. Bryant
is the speaker of the nine hereditary chiefs of the Allied Chiefs of Lax Kw'alaams.
We must remember that our neighbours the Nisga'a and the ancestors of the Tsimshian,
along with their ancestors, ventured to Victoria over a century ago to try to address
collectively the claims of our territory and the land question.
It is certainly a pleasure for me to see in your house my brother, Mr. Harry Nyce, who
is a representative of the Nisga'a Tribal Council. I have known Mr. Nyce for most of my
life. Indeed, he is a very close relative of the Tsimshian by marriage. I say that simply
to demonstrate that our relationship with the Nisga'a is long-standing. We have offered
our collective support throughout the years of their negotiations through the Native
Brotherhood of British Columbia. That was the only organization under which we were able
to gather to try to address land claims, as it was illegal for us to pursue the issue of
our lands in those days.
I will now proceed to give you an idea of how far back we have gone with the Nisga'a.
In our own way, we have conducted research, quite accurately, I hope, especially in regard
to the ancestors who are long gone. It is they who provide the authority of the Tsimshian
concerning our brothers the Nisga'a.
In 1974, the Allied Tribes formed a land claim specific to their territory and their
nine hereditary chiefs and submitted it to the Government of Canada, simply because the
Government of British Columbia was not active at that time in regard to land claims. At
the same time, the seven communities of the Tsimshian formed another organization called
the Council of the Tsimshian Nation. From 1982 to 1985, the claim of the Allied Tribes was
accepted for review, as well as the Council of the Tsimshian Nation.
That is what I need to speak to you about. I will first ask Mr. Bryant to speak on
behalf of the Allied Tribes to tell you the names of those tribes.
Mr. James Bryant, Chief Negotiator, Allied Tsimshian Tribes: Gil ax aks is indeed my
Indian name. I am a householder of the Gitwakowich tribe, which is the house of the
Madeek, which is the symbol of the grizzly bear.
The Allied Tsimshian Tribes of Lax Kw'alaams consist of the Gitwilgoits tribe, to which
I belong, and the house that I hold, the Madeek house; the Gitsees tribe; the Gitnadoiks
tribe; the Gitspaxloats tribe; the Gitlan tribe; the Gitzaxlaal tribe; the Ginaxangiik
tribe; the Gitandoah tribe; and the Gitluzau tribe. I act as speaker of the hereditary
chiefs of all these tribes.
It is also important to remember the strength of one of the tribes of the Gitspaxloats,
which have petroglyphs in a number of areas: for example, between Fishery Bay and
Lakalzap, which is Greenville; below Irondale at Three Mile Rock; at Ten Mile Point; in
the Skeena in the Kinitsa area. There is also the big one carved right in stone in the
Kitsalas Canyon. It consists of the face of the hereditary chief along with 12 shields
showing his power concerning trade with the other nations.
I should also like to quote from "A Review of Archival Materials for Information
Pertaining to Tsimshian Use and Occupation of the Nass Area". This research was done
by Susan Marsden in September of 1997 with regard to the Greenville-Kincolith highway. You
have received that document, Mr. Chairman.
I wish to quote from page 25 as follows:
Tsimshian interests at the mouth of the Nass which date to the earliest period include
the villages or settlement areas at Gitksidzox, at Greenville and at the Kincolith River.
Any archaeological information from these sites is potentially of considerable importance
to the Tsimshian, especially to the Tsimshian descendants of the Gitksidzox, the Gitlaan
and the Gits'iis, and the Laxtiyok. The sites of Kincolith and Greenville may be too
disturbed to reveal any comprehensive archaeological findings but a site of such potential
significance as Gitksidzox warrants extensive archaeological mitigation, if not
preservation as a heritage site. The possibility of new archaeological understandings of
ancient Tsimshian and Nisga'a culture is not often paralleled in the adawx and in this
case, they together constitute an invaluable record of Tsimshian history and culture.
In addition, the use of the oolichan grounds by the ancestors of the Tsimshian, who
lived both at the mouth of the Nass and at Metlakatla Pass, indicates, at the very least,
an interest in the oolichan fishery that dates back to the earliest times. The intense
annual use by the Tsimshian of the oolichan fishery for two to three months of every year
for millenia makes the area from the upriver end of Fishery Bay to the downriver end of IR
13 (and possibly beyond) one of considerable historic and economic significance to the
There are small maps at the back of the document that was presented. The main point
that we want to impress upon you is the importance of the fishing sites that pertain to
the aboriginal rights of the Tsimshian people.
Mr. Hill: I wish to read from a document we have provided you with entitled
"Tsimshian Nation Presentation to the Select Standing Committee on Aboriginal
Affairs". We have also provided you with the Northwest Travel Treaty and a memorandum
of understanding between the Nisga'a Nation and the Tsimshian Nation. Those are the main
documents we have provided you.
The Tsimshian Nation is also known as the Tsimshian Tribal Council. Our nation is
comprised of the seven Tsimshian First Nations of Kitselas, Kitsumkalum, Lax Kw'alaams,
Metlakatla, Kitkatla, Gitga'at, and Kitasoo/Xaixais. We also have another community that
we visit quite often, and that community is in the state of Alaska, also known as
Metlakatla, on Annette Island.
Our traditional territory covers approximately 13,000 square miles of the northwestern
portion of British Columbia. That includes the areas of Terrace and Prince Rupert. The
Tsimshian Nation is comprised of approximately 10,000 members, although the provincial and
federal governments only accept the federal Indian Act members of 7,000 registered
The majority of our members reside in the Northwest and within the federal Skeena
constituency area. We are one of the neighbouring First Nations of the Nisga'a, and we
share a common border in the Skeena and the Nass watershed. We also describe our
traditional territory as comprising of one third of the coast of British Columbia as we
know it today, as well as a third of the watershed of the Skeena River. It certainly is
significant in size. We also neighbour the mighty nation of the Haida, and we also have a
good working relationship there, which is in the documents that you have in your
We have a long history with the Nisga'a, through wars and through friendship, through
marriage, relationships, through trade and commerce, and through respect of our similar
cultural heritage. We also have established opportunities for more contemporary political
requirements in today's world. For example, in the last 10 years, we have entered into two
formal agreements with our neighbours, the Nisga'a. The first was the Northwest Tribal
Treaty, signed on February 11, 1991 in Prince Rupert, which was endorsed not only by the
Tsimshian and the Nisga'a but other First Nations within northern British Columbia as
Its basic intent was, and is, a commitment to advance and to protect our common
interests within the Pacific Northwest. Our second agreement was reached in 1996 when we
stood with the Nisga'a to enter in a very historic, traditional ceremony confirming our
relationship with each other and to renew a commitment, a respect and recognition of our
futures together. This is a memorandum of understanding between the Nisga'a Nation and the
Tsimshian Nation. It was dated November 7, 1996. It addresses our common boundary and our
common resource requirements. We include a copy of both of these, of course, in the
materials that you have in your possession.
We continue to support the Nisga'a people in their development efforts through the
Nisga'a Final Agreement, although we have some concerns. First, we do not want the Nisga'a
Final Agreement to be a template or a fixed model for treaty making in British Columbia.
The Tsimshian people are similar but not the same as the Nisga'a. Our needs, our
aspirations and our values must be taken into account in the treaty negotiation process.
This will be a similar requirement for many First Nations in their treaty agreements,
whether it is part of the B.C. treaty commission process or not.
We are also concerned that the Nisga'a Final Agreement may contain provisions that can
restrict the Tsimshian in exercising certain rights within lands or territories not fully
addressed as a result of the 1996 memorandum of understanding.
While we want to continue the trust and confidence in our work to date through this
MOU, many of our people are worried that they will lose commercial fishing access to the
area surrounding the Nass River. They are concerned that they will see their historic
fishing sites locked up by the Nisga'a or that the Nisga'a wildlife management system will
restrict our people in differing situations. We are also concerned that there continues to
be much debate internal to the Tsimshian between the Tsimshian and the Nisga'a, separately
involving other First Nations and indeed the general public over the exact boundaries of
traditional territories. It is clear that a defined process may be found if there is to be
successful treaty making in British Columbia. We have suggested that an option to ensure
some form of legal border agreement should be reached as a component of the agreement in
principle stage of negotiations.
It appears that the Nisga'a Final Agreement and passage of Bill C-9 is all but done. We
have supported them even though we have maintained certain reservations. If the Senate is
able to effectively address the issues above, it will not alter the substance of their
agreement but it will assist us. After all, one day we would expect you to be looking at
provisions for a Tsimshian Nations agreement.
I would like to close by making some simple observations. Through extensive
negotiations, the Nisga'a have reached agreement with British Columbia and Canada to
address the issues for their people. We congratulate all three parties in achieving a
milestone agreement in B.C. The Nisga'a treaty will bring many benefits to northwestern
British Columbia. It will enable the Nisga'a to work with other jurisdictions to improve
the quality of life for all northern British Columbians. Their direct assistance with
education and with health, economic and general community to development issues will be a
very positive one. It would be even better if our concerns were addressed.
I would like to thank every member of your house, Mr. Chairman, for allowing us to
speak at this time.
The Chairman: I might point out that this room is called the Aboriginal Committee Room.
As Senator Watt reminded me, this should be called our joint house. You are welcome here
because you belong here.
I would like to start with a question, following which my colleagues may have other
My question is whether you have settled your overlapping land claims with the Gitxsan
and Gitanyow peoples.
Mr. Hill: A quick and short answer to that would be our overlapping claims with the
Gitxsan. To my knowledge, we have a working understanding between the Gitxsan and
ourselves. One of the communities reached that agreement some time ago.
In regard to Gitanyow, we have tried under the Northwest Tribal Treaty group, which we
are going to reassemble, to have other parties of First Nations consent to try to resolve
the impasse between the Nisga'a and the Gitanyow. Believe you me, it is certainly a
tremendous undertaking. We have had two meetings that I can recall in the community of
Terrace to try to address this issue.
The Chairman: Are these recent meetings?
Mr. Hill: The recent meeting we had in regard to the Gitanyow was approximately three
or four years ago, if my memory serves me correctly.
The Chairman: There has been no process of dialogue with them since that time?
Mr. Hill: There has not been. In part, that is the reason that the hereditary chiefs of
the Tsimshian have asked me to make this presentation to you. There have been a number of
different letters, which I am sure have reached your table, contrary to what I have stated
to you in regard to our support to our brothers, the Nisga'a. Our reason is that we have
an ongoing process with the Nisga'a Nation. The most recent one, of course, is the highway
project between Kincolith and Greenville, such as the one of which Mr. Bryant spoken. I
might add that there has certainly been a very good committee struck in regard to that.
The Chairman: We have every desire, as a Senate committee, to see the peoples of the
Northwest settle the issues amongst themselves. The Nisga'a have said that to us, as have
the Gitxsan; and I am sure the Gitanyow will say the same thing.
There is a concern that has been expressed to us by Elmer Derrek of the Gitxsan that
there is no current process between them and the Nisga'a to resolve the overlapping
boundary issue. He asked if we could be of assistance. The committee is not a place for
resolving disputes. Our focus is whether this legislation is in the public interest, but
we would certainly want to see a process of settlement. Is it your view that your talks
with the Gitxsan could be resumed at any time? Where lies the barrier?
Mr. Hill: Mr. Chairman, if you are talking about the impasse between the Nisga'a and
the Gitanyow, my wishes are identical to yours. I think the barrier most definitely lies
with the two nations. If we can have another First Nation as the third party to try to
resolve the issues, then I think that option should always be there.
I have read the documents that Mr. Derrek and Mr. Ryan have presented to you, and I
must say that, having gone to meetings as often as we have in respect of this issue, it is
a difficult situation. However, I do not think we have exhausted all the options.
I should like to see a meeting between the Nisga'a and the Gitanyow and we can quite
possibly do that under the auspices of the Northwest Tribal Treaty signatories of the
Northwest. There are ten signatories to this simple and powerful document that stipulates
the issues of sharing resources.
The Chairman: Are you looking at the document of February 11, 1991?
Mr. Hill: That is right. The short answer is that we have not exhausted all avenues.
The plea by Mr. Derrek is, of course, within his realm, not ours. If he so wishes, I think
the senators should be able to offer as much support as is wanted.
The Chairman: I have noticed that, in spite of your objections, you do support the
treaty and do recommend that the treaty pass.
Mr. Hill: Yes.
The Chairman: Therefore, you are prepared to work with the Nisga'a on the outstanding
issues between you. I understood Mr. Derrek to say that he would like the committee to
assist in a resumption of the discussions. I do not think he said he wanted us to resolve
Mr. Hill: I stand corrected.
The Chairman: In fact, he suggested it is the business of the aboriginal communities,
not our business. There is no correction that you need to make.
I want to repeat what you and I agree to. The first line of resolution belongs to the
Northwest Tribal communities.
Mr. Hill: Yes.
Senator Christensen: Would you please elaborate on the issue of the Nisga'a acting as a
blueprint for all future treaties in B.C.?
Mr. Hill: Yes. I knew that question would arise and, frankly, I was not prepared to
answer it in any way, shape, or form because it is a forgone conclusion that we cannot
base the lands on the population of those areas.
Another issue that needs to be looked at carefully is minority in the First Nations
community. Approximately 112 years ago, we welcomed you with open arms and we have given
you the powers that the knowledgeable senator asked about, and indeed we continue to do
the same today. We welcome and embrace people of other races within our territory.
I believe the Nisga'a have reached a milestone. Despite our differences on the land
base, we cannot argue that point. It is their treaty. It is their agreement, and we would
hope to reach that same stage at a future date despite what our land base may be. The
issue of the template, or blueprint, is that even though we have a common culture with the
Nisga'a, we are so distinct and so isolated from each other. Mr. Nyce and I can converse
in our own languages and yet understand each other. That is how close we are.
I believe other nations in northwestern British Columbia have a variety of different
needs. It has taken the Nisga'a over a century to reach this stage, but we are expected to
conclude a treaty within the next six years. We are in the fourth stage and had hoped to
sign an agreement in principle within the next year; however, the political atmosphere in
British Columbia is not right for us as a nation to reach that stage. That is currently
out of our reach.
Mr. Jack Talstra, Mayor, City of Terrace: Honourable senators, thank you for inviting
me to attend before you this evening. Terrace, located in the northwest of British
Columbia, has a population of 12,600 and a total area population of 22,000. It is situated
in the historic land of the Tsimshian and is a close neighbour to the Nass Valley and its
people, the Nisga'a.
Terrace began as an agricultural and logging community at the time the old Grand Trunk
Pacific Railway pushed its way west from Edmonton to the Pacific, at Prince Rupert, in the
early 1900's. Today Terrace is the retail and commercial distribution centre for the
Northwest, largely because of its strategic location at the junction of Highway 37 out of
Kitimat to the Yukon and Highway 16 west to the port of Prince Rupert.
The population of greater Terrace is comprised of a diversity of people made up of
immigrants from several European countries, including a comparatively large French
minority group, and, more recently, immigrants from India, the Philippines, China and
other eastern countries. Terrace is also the meeting place for various First Nations,
including the Tsimshian, Nisga'a, Gitanyow, Gitxsan, Wetuwetsen, Haisla, Haida, Talhtan,
and even a few Dene live in Terrace. Approximately 15 per cent of our city's area
population is of First Nation origin. Many live permanently within the boundary of
Terrace. We are a growing, vibrant, diverse and energetic community.
I have been the mayor of Terrace for 14 years, and in November was re-elected for a
further three years. Prior to that, I served as a councillor on city council for six
years. I have been the delegate director for the city to the Regional District of
Kitimat-Stikine for all of those 20 years, and for six of those years served as its
chairperson. I am presently the delegate for the regional district to the province's
Municipal Finance Authority, and I have served as chairperson of various committees
throughout. I have been involved with the Nisga'a treaty negotiations as a representative
to the Treaty Advisory Committee locally, and as a liaison for city council to the Union
of B.C. Municipalities in the early years of Nisga'a treaty discussions.
I am here this evening on my own behalf and on behalf of city council to convey to you
the City of Terrace's general support in principle of the Nisga'a treaty and our desire to
have it concluded. That is not to say there are no concerns. There are concerns for us as
a community and as citizens of Canada living alongside our First Nations neighbours;
however, we view those concerns as challenges that can be overcome. As a whole, we wish
the treaty signed as is, sooner rather than later, so that we might focus our energy and
creativity on implementation rather than on past discussion and previous arguments.
The Supreme Court of Canada, in the landmark case of Delgamuukw, said what we in
Terrace have always known. At the conclusion of their deliberations the judges said,
"Let us face it, we are all here to stay." Those are simple words with a
profound meaning. The people of Terrace will never go away and neither will the people of
the Nass, and because of that simple but powerful fact we seek a resolution of outstanding
issues through a treaty process. Alternatives to treaties are simply unacceptable for
those who live in our area now or in the future.
What then of the Nisga'a treaty? The primary concerns of the citizens of Terrace and
area in regards to this treaty are four-fold: first, that there be certainty and finality;
second, that the economic well-being of all citizens, native and non-native, be advanced
and the opportunities and tools for doing so remain in place; third, that the quality of
our lifestyle continue to improve; and fourth, that the future of our children in this
land remain secure.
We as local governments want treaty settlements to be certain and final, meaning that
the final outcome of treaty negotiations will be a completion of the process of addressing
outstanding First Nation claims. In relation to the question of aboriginal right and
title, we hope the treaty will bring finality and certainty to the greatest extent
possible, recognizing that the self-government component for aboriginals may be a dynamic,
evolving form of government, as it is for local governments. This will enable all citizens
of British Columbia to move forward economically and socially and to maintain community
In my council's view and in the view of UBCM -- the governing body of municipalities in
British Columbia -- the Nisga'a Final Agreement substantially accords with municipal
policies and principles regarding certainty. Its provisions for amendment and modification
are designed to respond to changing circumstances and, when combined with the dispute
resolution provisions, provide for a relatively high degree of certainty.
However, there is no doubt that in the implementation of a treaty arising out of the
Nisga'a Final Agreement, NFA, there may be changes to its terms by agreement or arising
out of the dispute resolution process as set out in the NFA. This, in our view, is
inevitable, having regard to the evolutionary nature of aboriginal self-government, the
potential for future overlapping aboriginal claims, fiscal implementation of
intergovernmental arrangements and changing circumstances, and future unforeseen
circumstances, the precise nature of which could not be fully and comprehensively
articulated at the time of drafting.
The defining of section 35 rights and the release to Canada of undefined section 35
rights are keystones for certainty in the NFA. In our view, implementation uncertainties
that are fully contemplated by the NFA are inherent and necessary to a flexible
implementation of the terms and concepts underlining the NFA. It is in that sense that
there remains some aspect of uncertainty and a lack of finality in the NFA.
The NFA does not comply with the UBCM model of surrender or partial surrender because
the NFA does not purport to extinguish aboriginal rights. However, the Nisga'a do release
to Canada undefined section 35 rights not otherwise expressly set out in the NFA. The
principles that guide certainty decisions in treaty negotiations, set out in the 1995 UBCM
policy paper, are substantially met. The rights of the Nisga'a are defined; the boundaries
of the Nisga'a lands are clear. This jurisdiction of Nisga'a government is defined and the
interrelationship of Nisga'a laws with federal and provincial laws is set out.
British Columbia retains jurisdiction over activities on Crown lands outside Nisga'a
lands. The rights that the Nisga'a have outside the boundaries of Nisga'a lands are
exhaustively defined. While many of these rights are complex in their description and
application, the fact that they have been defined and agreed to significantly improves the
level of certainty. Therefore, the Terrace city council is comfortable in that issue.
I shall now turn to the topic of economic concerns. The report prepared by ARA
Consulting Group Inc. for the Ministry of Aboriginal Affairs for British Columbia and for
the Federal Treaty Negotiation Office for the Government of Canada, dated December 1995,
states findings that we find to be the case in our area as well. We take some comfort of
general trends found in other jurisdictions after a treaty has been implemented. Those
trends include the following: controversy prior to and during the negotiation of the claim
reduces during the implementation period; reactions toward settlement from the business
community become more supportive as the reasons for, and the benefits of, settlement
become more known; settlements have not brought about any dramatic changes for the
non-aboriginal community; clear rules and approval processes for investment or development
need to be established to maximize certainty in the post-settlement environment; in many
cases, settlement has led to a stronger partnership between aboriginal and non-aboriginal
societies; aboriginal groups have entered a wide variety of business ventures and have
sought business partnerships with the non-aboriginal community that often feature
provisions related to community development; capacity building in education and training
is needed to maximize benefits in a post-settlement environment; and both aboriginal and
non-aboriginal societies are made more aware of each other's lifestyle and cultural values
in the land claims process.
We believe in the Nisga'a treaty. We believe the focus should now be on implementation.
It is essential to begin now to establish understanding for the future as between
aboriginal and non-aboriginal communities. The City of Terrace believes this can be
developed through the shared management of resources, increased commercial interaction in
the business community through both private aboriginal investment and joint venture
arrangements, and increased cultural understanding through communication during the
In regard to social, cultural and lifestyle values, we all want a better lifestyle for
ourselves and for our children. The City of Terrace believes that the treaty process is
one way to enhance our well-being, for the Nisga'a and for ourselves, for us now and for
our children in the future.
As indicated in the ARA report, the success of treaties depends on finding specific
solutions to specific problems. The Nisga'a and non-Nisga'a are capable of finding such
solutions through cooperative and productive efforts both in the negotiation process and
in the post-settlement environment, with the result that all those living in the Northwest
will benefit socially, culturally and in other value productive relationships.
I am not sure if the mandate of the Senate covers implementation, but we do want to
focus on it. It is the fourth part of our presentation.
As senators know, in the beginning, the Nisga'a treaty negotiations were extremely
closed discussions involving only the federal, provincial and Nisga'a negotiating teams.
The people who live in the area and the ones who would be affected by the treaty were
excluded. Eventually, after much protest and lobbying by the city, the process opened to
the point that regional and local advisory committees were established to bring forward
concerns. In the last stages of negotiation, the province allowed a municipal appointee to
be a member of the provincial negotiation team. The federal government, although asked,
has steadfastly refused such local input onto their negotiating team. I believe that has
been a detriment to the process.
However, section 5 of chapter 21 of the treaty provides for an implementation
committee. As a city, we respectfully requested the federal government to appoint one or
more local qualified persons as their representatives on this committee. The introduction
of an implementation plan sensitive to the needs of all those living in the Northwest is
critical to the proper development of changes that may follow in the years ahead.
All of us living in the Northwest want to be part of a better future. We know that
treaties are not a panacea, but neither are they a massive threat. They are one tool among
many that allow all of us social and economic prosperity.
This Nisga'a treaty provides an opportunity for them and for non-natives to chart a
common future to establish a framework for working together. The City of Terrace looks
forward eagerly to those opportunities. Let us begin the new millennium with renewed
vigour and faith. We wish our Nisga'a neighbours well. Let us move forward with this new
The Chairman: Thank you for your presentation, sir. It was most interesting, coming as
it does from a long-serving and long-elected public official living in the neighbourhood.
I wanted to make clear that the Standing Senate Committee on Aboriginal Peoples keeps
all these agreements under review. We will not stop looking at such an important document
as the Nisga'a Final Agreement once it becomes law. We will continue to overview
developments under this treaty as part of our mandate to concern ourselves with the
affairs of aboriginal people. If you or your successor have views in the future, we would
certainly welcome them in time.
Mr. Talstra: That is very comforting, Mr. Chairman.
The Chairman: One of the most important parts of the treaty, which is actually
analogous to the treaty rather than part of the treaty, is the implementation procedure
that you refer to. Because the implementation committee is set up by the parties,
including the Nisga'a, and not just by the federal government, have you had any
discussions with the Nisga'a?
Mr. Talstra: We have not quite reached that stage, although I received a message from a
Nisga'a member from Greenville about a week ago saying that they are discussing
implementation and they would like to invite me to their meeting. Unfortunately, it was at
the same time that I am here. At least the invitation came, which is very encouraging.
The Chairman: Mr. Harry Nyce is here. He knows that you are here. Thus, he knows that
you have not gone off to Arizona to play golf.
Mr. Talstra: I do have an excuse.
Senator Wilson: I am interested in your comments on implementation, which was your very
last point. You said that the province allowed a municipal appointee as a member of the
provincial negotiation team, but the federal government refused such local input. What was
the rationale for that?
You followed in the next paragraph by saying that the City of Terrace requested the
federal government to appoint one or more local qualified persons as their representatives
on the committee. What was the rationale for that?
Mr. Talstra: The Nisga'a negotiations became more serious in the last four or five
years. As non-Nisga'a and non-native, yet having a substantial population in the area, we
felt a little bit out of the loop. I do not know if you share the syndrome that is shared
by many people in Terrace, which is that the further you are removed from Ottawa or
Victoria, the more you feel that those people do not quite represent you in the right way.
They do represent you, but you have some suspicions about them.
As local people living there, we felt that we should be brought into the loop. We are
on the front lines. We bear the brunt of whatever might happen with respect to these
treaty negotiations. In our view, the ones who negotiate the treaty go back home to
Victoria and Ottawa. However, we are left there to deal with this. Thus, we felt that we
should have some input into the process.
There was not only that. We know these people, the Nisga'a and the Tsimshian. By and
large, we get along with them reasonably well. They know us. They know that we will have
to deal with each other in the next 100 years or 200 years. We felt that we could give
some input to the federal and provincial negotiating teams. If something arose at the
table that suddenly had to be decided one way or another, then we could have some input
right there. That is why we asked for that.
The Union of B.C. Municipalities picked up that cause for us and lobbied with us to the
provincial government. At the end of the day, Premier Harcourt actually granted us what we
were seeking. They hired a person we selected, a former mayor of Kitimat who is now
retired, who became a member of the provincial negotiation team and who I think did some
We wrote to the Minister of Indian Affairs here in Ottawa and asked for the same thing.
The letter we received in reply was very short. They simply said that they would not
entertain that particular request. Why, I do not know. They did not say in the letter.
The Chairman: The ways of the federal government are mysterious even to us.
Senator Grafstein: Your presentation has been helpful and enlightening. Senator
Chalifoux and I have been interested in aboriginal people living off the reserves. I
noticed that, in your opening statement, you referred to the fact that Terrace is a
meeting place for various First Nations, including the Tsimshian, the Nisga'a and others.
What is the resident population of the Nisga'a in Terrace? Is there a sizable local
Mr. Talstra: Yes, it is sizable in comparison to the entire population.
Senator Grafstein: What would that figure be?
Mr. Talstra: I am guessing approximately 1,000 people.
Senator Grafstein: Tell me, from your perspective, how the mechanism outlined in the
treaty will work. There is a simple yet complicated governance structure, both within the
treaty lands and also with respect to those Nisga'a off the treaty lands, which I assume
would include you because you have a substantial population base. How would that work and
what would be the sorts of problems or issues that you would have with respect to Nisga'a
living within your community, relating to their rights there as well as the rights on the
land? Will that present a problem? I am not too clear on how it works.
Mr. Talstra: I do not think it will present a problem. The Nisga'a living within the
boundaries of Terrace off their core lands are treated as every citizen in Canada is
treated or every citizen in Terrace is treated. They have the right to vote in our
municipal elections, they can own property, they have the right to go into business, and
do what you and I can do there.
Senator Grafstein: They have full citizenship rights in the city?
Mr. Talstra: That is correct. They also have a chapter in Terrace where they meet, and
they have input into Nisga'a matters that involve them as Nisga'a people.
Senator Grafstein: I am familiar with that. I just wanted to know what the impact was
or whether there was any addition or deterioration of their responsibilities or rights as
residents off the land. You say there are none, that, quite the contrary, they have full
Mr. Talstra: Yes.
The Chairman: Perhaps I could ask a question of a nature similar to that which Senator
Grafstein has been asking. Has any non-Nisga'a resident on what will be Nisga'a lands
expressed any concern to you with respect to the inability to vote on Nisga'a tribal
business and to vote for people who are conducting Nisga'a tribal business?
Mr. Talstra: I was going to say there is one, but there is probably more than one.
However, it is a very small group. I know one fellow who is a client of mine who comes in
and talks about that from time to time, and I am sure there are others as well, but
certainly not the majority of non-Nisga'a. There are not that many there, and as someone
said previously, they are usually transient in nature because either they are
schoolteachers or they work for the health board or they work in some other such capacity.
They are there for four or five years and then they are transferred somewhere else.
Therefore, the only non-Nisga'a who live there permanently are those who have some kind of
property and perhaps try to farm or log or that sort of thing.
The Chairman: I have a question with respect to the Regional District of
Kitimat-Stikine, and I think you may be or still are on the regional district. Will the
Nisga'a lands be within the regional district?
Mr. Talstra: That is correct. The area of the Nisga'a lands has historically always
been in electoral area A of our regional district, and they remain there. They will be
full participants in electoral area A. Nothing changes there, to the best of my knowledge.
There is a section on government, chapter 18. It is very short. On that issue, we actually
sat down as a regional district with the Nisga'a and determined that face-to-face.
The Chairman: This is the result of a direct negotiation with the Nisga'a?
Mr. Talstra: That is correct.
The Chairman: Senators, I want to thank Mayor Talstra on your behalf for coming and
telling us the views of his council and the people of Terrace. Thank you very much, mayor,
for coming this very long distance to make this presentation.
Our next witness is Professor Scott of the Faculty of Law of McGill University.
Welcome, Professor Scott. Please proceed.
Professor Stephen A. Scott, Faculty of Law, McGill University: It is always a privilege
to be here. It is some months since I was here and it is always very stimulating and
interesting, and I thank you all for the invitation.
On November 23, 1999, I appeared in the other place before the Standing Committee on
Aboriginal Affairs and Northern Development to give evidence on the first reading text of
Bill C-9, an Act to give effect to the Nisga'a Final Agreement, since passed by that
House. I did so then with some diffidence, which I reiterate today, having no special
expertise on aboriginal issues and having only had the opportunity to study the bill
itself, some parts of the final agreement, and some background material. However, since
the bill and the agreement raise issues of great general importance, I shall permit
myself, speaking only as a student of constitutional issues and public affairs, to share
with you a few impressions. These fall broadly under the headings of historic justice,
centrifugal forces and the government of the federation, and the rule of law.
First, historic justice. So far as land rights are concerned, my impression is that the
rights given to the Nisga'a are not inordinate in a broad, historic context. It seems to
me idle to lead a charge against this settlement, trumpeting the principle of equality,
important though it is. Equality does not mean that someone whose property has been taken
should not be compensated. Quite the contrary. Too often in our history, the aboriginal
peoples, in reality, whether or not in law, have been despoiled of lands and denied even
basic civil liberties, such as freedom of religion and the use of their languages.
One man's revealed religious truth is another man's superstition. The forcible
imposition of Judeo-Christian religious beliefs by missionaries, with the assistance of
the state, in schools and elsewhere, however well-intentioned, has been breathtaking in
its insolence and deleterious in its effects. The same can be said of the suppression of
the use of native languages and cultural activities by laws such as the Potlatch Acts.
These have been denials of rights properly belonging to all Canadians. Where measures of
redress are properly measured and reasonable, it is ridiculous to attack them as special
privileges. The Nisga'a and other aboriginal peoples deserve just and generous treatment.
Second, centrifugal forces and the government of the federation. There is no more
complex challenge than ensuring that aboriginal peoples can maintain something of their
traditions while attaining economic standards comparable to those of the population as a
whole. It is clear to me that that can only be achieved if the country as a whole is
economically competitive, and government must be effective if that is to be accomplished.
Canada's declining competitiveness has in recent decades been reflected, for example, in
the value of our currency. At the best of times, the centrifugal forces are so great that
this country is virtually ungovernable. I think that this has much to do with our economic
problems. In the Balkans, they speak of "Canadianization". For the future, we
must see to it that the aboriginal people share wealth, not poverty.
I believe it is in the interests of the whole population of Canada, including the
aboriginal peoples, that aboriginal self-government be achieved by means analogous to
municipal self-government, but under federal legislative authority, rather than through
the creation of an entirely new, constitutionally entrenched, level of government with
large numbers of constitutionally established mini-states -- probably ultimately many
hundreds of them. It is surely no disgrace to occupy a position analogous to Toronto, for
example, but under federal jurisdiction.
While the governmental arrangements provided for in the Final Agreement may, in
general, be an acceptable starting point, they must, in my view, be subject to alteration
by the Parliament of Canada from time to time. It is not clear how far the governmental
arrangements -- as opposed to the land rights -- provided for in the Final Agreement will
become constitutionally entrenched under subsections 35(1) and 35(3) of the Constitution
Act, 1982, as amended. It is clear from clause 3 of the bill that some measure of
constitutional entrenchment of the agreement is desired, expected and, I think, will be
I note, for example, the declaration, made by section 8 of Chapter 2, General
Provisions, in the Final Agreement, that the agreement does not alter the Constitution of
Canada, including inter alia, the distribution of powers; yet many provisions of the
agreement give priority to Nisga'a laws over federal and provincial laws. Clause 6 of Bill
C-9 purports to give priority to the Final Agreement over any federal or provincial law,
"including this Act" itself.
The courts may, and I believe should, hold that -- except perhaps for incidental
constitutional safeguards of land rights -- powers of government conferred on aboriginal
peoples are not rights acquired by "land claims agreements" within the meaning
of section 35(3) of the 1982 act, and so do not become entrenched, even if both matters
are addressed in the same agreement. However, since we cannot be certain of the outcome, I
think it should be made clear that, once passed and assented to, Bill C-9 will not become
an unrepealable act. I would add the following clause:
For the avoidance of doubt, it is declared that this Act is enacted without prejudice
to the legislative authority of the Parliament of Canada and may accordingly be amended or
repealed by the Parliament of Canada; but no amending or repealing Act may take, or permit
the taking of, or otherwise affect title to or enjoyment of, any land or other rights in
or to property, in any manner which would not have been lawful had this section not been
enacted; and this section shall be inseverable from this Act and shall apply
notwithstanding anything in this Act.
Our present century has seen even great states degenerate into barbarism. Small
communities are inherently vulnerable in terms of maintaining constitutional government.
Events in Newfoundland in August of 1838 illustrate this perfectly. An altercation in the
streets of St. John's between a member of the House, John Kent, and a surgeon, Dr. Edward
Kielley, led to the latter's arrest on a charge of breach of the privileges of the House;
his committal to prison by the House; his release by a Judge of the Supreme Court, Mr.
Justice Lilly; the arrest, on orders of the House, not only of Dr. Kielley, but also of
the High Sheriff and Mr. Justice Lily himself, who, whilst in performance of his duties,
was dragged out of his chambers through the streets of St. John's; and ultimately the
prorogation of the legislature by the government to put an end to these proceedings.
Litigation from these events led to a major Privy Council decision on the extent of
parliamentary privilege at common law. This example surely is no reflection on aboriginal
capacity for self-government; but it shows why I think that, just like local governments,
small polities like aboriginal communities should remain under the sovereign authority of
a senior level of government.
Third, the rule of law. Given the unsatisfactory, and sometimes scandalous, record of
senior levels of government in this regard, I am concerned at what seems inadequate
provision, in the agreement and in Bill C-9, to ensure the continuing integrity and
preservation of legislative and administrative archives of the Nisga'a government, and,
indeed, the lack of obligatory provisions for publication of legislative and executive
acts. In Bill C-9 itself, the Parliament of Canada is setting the worst possible example,
since the Final Agreement and related instruments, although they are to be separately
published, are not annexed to the bill itself, even though it forms the guts of the
legislation and is even given supremacy over the whole enactment by clause 6. In practical
terms, the Final Agreement and other instruments will often be unavailable to users of
Canadian statutes in Canada and abroad, even though, by clause 4, the agreement is given
force of law; by clause 5, it binds third parties and can be relied on by them; and by
clause 6, it prevails over the terms of the act itself. So this is not a routine case
where a statute merely attaches some legal consequence to some extrinsic instrument. In
these circumstances, omitting the verbatim text of the agreement from the bill is a
travesty of the rule of law, of Constitutionalism, and it is a total disgrace. The bill
does not even require an original of the Final Agreement and related documents to be
deposited with the Clerk of the Parliaments and kept of record with the act. Though that
would be no complete substitute for its textual incorporation into the bill, it would at
least ensure the integrity of the parliamentary records.
I feel so strongly about this as to think that no responsible member of either house
could vote for Bill C-9 at least until it is amended to annex, perhaps photographically,
the Final Agreement with its appendices and the related agreements too. The government
rejected an amendment to incorporate the agreement textually into the bill when it was
before the House, though this proposal had nothing whatever to do with this particular
agreement as such, but rather is solely concerned to ensure respect for constitutional
principles and, indeed, compliance with the spirit, and perhaps also the letter, of
section 133 of the Constitution Act, 1867, which requires publication of the statutes. The
attitude of the Minister of Justice towards this detail -- as she obviously considers it
-- shows perfectly the proclivity of governments to cut corners, find short-term
solutions, ignore issues of principle, and leave problems for the future. The government's
reflex has manifestly been simply to move this file at any cost, to treat every suggestion
or amendment, however innocuous, as hostile, and to listen to nothing but applause. I am
utterly disgusted and appalled. Will the Senate protect the integrity of the parliamentary
The Chairman: Thank you for your presentation. I can understand now why you are
considered to be such a dramatically good teacher.
Senator Grafstein: This is the second time you have appeared with respect to a matter
before the Senate. I agree with the chairman that your views are not only informative but
also put in a way that is colourful. I think we understand what you are saying. We are not
confused by your message.
The counsel to the Nisga'a, and others, in particular Professor Morse, gave us the
rationale for exempting the federal government's paramountcy in this matter. As I follow
the argument -- and I do not have it before me, so I am just trying to give an anecdotal
review -- it is that there is an inherent right of government that preceded the exercise
of the prerogative of the Crown. It goes back before 1754. In effect, it has inherent
rights of self-government, nationhood, and sovereignty. In fact, we are not dealing here
with a political group within a country, but essentially a nation. We are a nation
negotiating with a nation -- hence a treaty. That is the model, and that is the result of
conclusions that were reached by the Royal Commission on Aboriginal Peoples, except that
they thought that it should be constitutionally entrenched as opposed to dealt with
legislatively. That was a different conclusion.
I tried to look at this question in an open way, because some of my colleagues here
feel strongly that inherent rights and sovereignty go to the essence of identity of the
aboriginal people, and I am sensitive to that. Having said that, I tried to look at this
in a comparative way. I have not completed my investigation yet, but just today I received
some information with respect to the practice in the United States. I asked myself this
question: Can we in Canada, in effect, free the federal government from legislative
oversight, which is one of your fundamental arguments here under the Constitution?
I looked at the example in the United States of the Navajo Nation. I have here a
detailed and excellent memo dealing with the Navajo Nation's practice of the law and
courts of law. They have independent laws and exclusive jurisdiction in some matters. My
understanding, based on the origins of the Marshall case, is -- and I have not confirmed
this, so perhaps you can help me -- that in the United States the Congress has permitted
the Navajos to develop a form of self-government that is intrinsic and exclusive, yet it
never surrendered its right as Congress to legislate. It has total freedom.
Some have defined the Navajo as a domestic nation, but the Congress of the United
States has never exempted itself from the opportunity to legislate in these matters. Are
you making the same case here?
Mr. Scott: I think I am, substantially. I am saying that legislative oversight is
needed. I emphasized in my observations that this is an acceptable starting point. It is.
Most of this is perfectly fine. It will rarely need to be revised, but, nevertheless, from
time to time revision will be necessary.
We can say that, on a moral basis, the European states came; they invaded. There was
something equivalent to warfare of one sort or another. Whatever devices were used to
colour it, land was taken; sovereignty was taken. All of that is true. You can make a
moral case regarding that.
I encountered traditional peoples about 30 years ago, when I started to teach law and
went to Khanawake. They sat on the side, because they did not want to be involved in the
Indian Act, but I thought about these issues. The fact of the matter is that we are all on
the same ship. Obviously, any group that comes to you will say, "This is what we need
and want." They will look at the question from their standpoint, rather than from the
standpoint of the entire state and the entire public interest. It is the job of the two
Houses of Parliament to do that.
The question is not what this particular agreement does, when taken in isolation, but
what it does when taken as a model and a pattern for others. It will be irresistible to
agree to the same kinds of things in other agreements and there will be hundreds of
mini-states. The country is risking an aggravation of the centrifugal forces, and the
situation will become even more ungovernable than it is now.
The traditional metaphor of rearranging the deck chairs on the Titanic has some
aptness. I am not saying that we have hit an iceberg and I do not say we will go down, but
the ship of state has been teetering a bit. In looking at our general economic situation
and the weaknesses of government in all kinds of ways, I feel that it is not a desirable
policy to embark on creating a third level of government, as this bill clearly intends.
In my view, the aboriginal people should be dealt with very generously. They could be
paid a lot more money than they are being paid and I would still be happy. They could be
given a lot more land and I would still be happy. My problem is the setting up of
hundreds, perhaps thousands, of Monacos, mini-states on one side or the other with varying
powers. Even to administer them would mean huge costs.
Senator Grafstein: I wish to put an argument to you, because you have mixed politics
and the Constitution here in an interesting way, but one that makes it difficult to parse
through the differences between the two. Let me make to you the argument I made to myself
about the amending process here. We have heard today that the amending process is modified
by the negotiation process and the arbitration process. We are talking about how to change
things that seem to be unreasonable.
We have here some very astute drafting. The Mayor of Terrace, Mr. Talstra, made this
argument: He said that there are good arbitration provisions here. He sees the situation
evolving through the present uncertainty and that the good faith on both sides and the
arbitration process will help. That is one good way of looking at it. Another good way of
looking at it is that the Nisga'a have been moderate in their ultimate claims. So we have
with moderation and good faith.
The argument then comes back: What about the treaty itself? The legislation says that
the only way to change this agreement is to have on side the three parties, including 70
per cent of Nisga'a membership. We know in Canada that that, relatively speaking,
describes a deadlock. The agreement will be difficult to amend, unless there is some
extraordinary event on which everyone's interests align.
The federal government, having made this deal, still has huge economic leverage to
exert. It may be able to foist a change on the Nisga'a and/or the provincial government,
if one of them acts unreasonably, by use of its economic levers. I then say to myself,
that seems all right, but is that how we want to address the question of a political
Mr. Scott: That would be sordid and hugely damaging. We would have large numbers of
mini-states, as I see it, perhaps working pretty well most of the time but occasionally
creating problems because there are large numbers of them. However, they are susceptible
to being brought in line by kicking them around a bit. To offer that as a solution to
intractable behaviour seems to be a bad way to start. It is a foolish and undesirable
I believe in generous treatment. Perhaps the powers in some cases should be wider. I do
not have difficulty in many of these cases where Nisga'a laws can derogate from general
laws. I say that some of these areas will, from time to time, give problems, but the
country must be governed and changes must be possible.
Toronto can come to the legislature of Ontario from time to time for changes in its
charter. Mr. Lastman is not a bashful individual; he is not pushed around too much. With
that as an example, it is not an impossible or unworkable model to establish many of these
small polities and to give them rightful self-government.
The Chairman: Senator Beaudoin, as a professor of Constitutional Law, will be speaking
to this witness, who is also a Constitutional Law professor, but the rest of us will try
to understand their exchange.
Senator Beaudoin: I do not have any difficulty with the word "nation" as used
by Chief Justice Marshall in the United States in 1830. I do not have any difficulty with
dual citizenship. Obviously, it will be construed in a way that will be quite workable.
The only difficulty I have is with the drafting of the bill.
This is not intended to be a constitutional amendment. If it were a constitutional
amendment, we would need the 7-50 formula. It is an ordinary statute of the Parliament of
Canada, involving B.C. and the Nisga'a Nation. If this bill is not intended to be a
constitutional amendment, the only problem that remains is whether the statute is valid.
Is it constitutional?
There is one point that we can discuss. As I said before, in the concurrent powers, the
nation has a paramount power. That may be considered as an abandonment of parliamentary
supremacy in our field.
I cannot say what will happen, but the chances are that it may be challenged in court.
Since it is a statute and it is not intended to be a constitutional amendment, we will
have to comply with the decision of the Supreme Court of Canada. I have full confidence in
the Supreme Court.
How will this be interpreted? We are divided on this. Certain constitutional experts
say that the inherent form of government is already in section 35 of the Constitution Act
of 1982 -- in other words, that the third order of government is implicit in section 35 of
the act of 1982.
That is an interesting argument. I discussed that with my colleague Mr. Dussault, when
he was on the royal commission. Others say that it is not there. The Supreme Court never
went so far as to say that a third order of government is contained in section 35. It has
said that aboriginal nations have a special status in Canada, and there is absolutely no
doubt in the world about that. There is also absolutely no doubt that they have collective
rights. All this is perfectly legal, in my opinion.
When we consider the paramountcy of this bill, we may raise that question on that
particular point. It may be that the court will construe that as being quite acceptable,
having regard to the circumstances, or it may be that they will say that everything else
is all right, but that paramountcy is debatable and may be challenged.
Am I correct that you have said that it is a third order of government?
Mr. Scott: I say that this is intended to try to make it a third order of government.
Perhaps there are powers of government now in section 35 and perhaps there are not. The
Parliament of Canada cannot do anything about that, and that can go to litigation and be
decided. The question is what the effects of this bill and the agreement will be. Clause 3
of the bill says:
The Nisga'a Final Agreement is a treaty and a land claims agreement within the meaning
of sections 25 and 35 of the Constitution Act, 1982.
It is not just for land rights, but all of the Nisga'a Final Agreement, including
powers of government. Clause 3 says that, once this is given the force of law by the B.C.
statute, which has been passed, and by an act of this Parliament, all of the provisions of
the agreement conferring all the government powers, some of which derogate from federal
powers and some of which derogate from provincial powers, the whole agreement, will become
aboriginal rights and treaty rights. It is saying that there will be aboriginal treaty
If that is to be effective according to its terms -- and maybe it will and maybe it
will not -- that, too, will go to the Supreme Court. However, if clause 3 stands in the
bill, and if nothing is done, such as, for example, what I suggest with my proposed
amendments, the question before the court will be whether powers of government become
constitutionalized when an agreement is made and given statutory effect.
I have read Professor Hogg's book closely. Although it is not absolutely clear, I think
he would say that the result of this act and this agreement would be to put the powers of
the government into section 35, and thereafter they will not be amendable except as the
agreement says they can be amended.
Senator Beaudoin: We must distinguish between treaty rights and third order of
government. The aboriginal people have many treaty rights. There is no doubt in the world
about that, and they are all valid. Treaty rights are not a problem for me.
The problem is: when is a treaty of that nature, in the way it is expressed in a
statute of Parliament, equivalent to a third order of government that has not yet been
recognized by the Supreme Court. If this bill is accepted by Parliament, it will not be an
ordinary bill, but I believe that it will not be a constitutional amendment. It is an act
of Parliament. Some articles of the bill may be challenged, as are articles of many bills
passed by Parliament, but that is the only thing I foresee at this moment.
As you said, the court has said that we will all be here for a very long time, so we
must find a way to give more powers to the aboriginal nations. The question is whether
this is a good way to do it.
I think we should avoid the question of a third order of government and legislate as it
is. If ever there is a court challenge, we will know which thesis is accepted by the
Supreme Court of Canada.
Mr. Scott: If this agreement had only dealt with lands, hunting, fishing, and other
matters, the entrenchment through section 35 would not create a third order of government.
However, this agreement is declared to be a treaty and land claims agreement within
sections 25 and 35, and it deals with powers of government. If, in dealing with powers of
government and becoming entrenched in section 35(1), there become powers of government
that are outside federal and provincial powers and that override federal and provincial
powers, you have created a third order of government, whatever you call it. I say that,
because there are new powers of government over and above federal and provincial powers
that have been drawn in through 35(1) because they are aboriginal and treaty rights as
amplified in subsection (3), rights that now exist by way of land claims agreements, or
may be so acquired. If the court says that powers of government can be put into the
Constitution through section 35(1), albeit not by a direct amendment, then it will create
a third order of government, regardless of what it is called.
Senator Beaudoin: I am not ready to accept that. If the Supreme Court says it is an
order or we make a constitutional amendment, I would agree with you. However, as long as
we proceed legislatively, as we are in the present case, the question is where we have to
stop. We must stop somewhere. It may be pretty close to the boundary, but we must leave it
either to a constitutional amendment or to a decision of the Supreme Court. This is
probably what the government and Parliament wish to do.
In my opinion, the only question is that of concurrent power and paramountcy. I see no
problem with the rest.
The Chairman: Professor Scott, would you agree that your presentation on the issue of
whether power to the Nisga'a should be delegated or be involved as a negotiated settlement
of a definition under section 35 depends on a political value system?
Mr. Scott: Yes, everything does.
The Chairman: Your political value system is, if I understand your argument, based on a
pragmatic view that there will not be sufficient flexibility for the parties if the
agreement proceeds under the present arrangement, under which section 35 will protect the
agreement constitutionally. You are concerned about the pragmatics of the future; is that
Mr. Scott: I wish to be generous to the aboriginal peoples. Basically, I do not even
have a problem with this deal and this agreement, as an agreement given statutory force,
however it is done, as long as it can be amended by the Parliament of Canada. That is
where I draw the line.
As I see it, we are embarking on a process of creating a third order of government, if
this act has the effect it intends to have, which says that it is to be a land treaty and
land claims agreement, including the governmental powers. You will then have one to 30
mini-states within Canada. I look at the country as it is, with the centrifugal forces we
have, and I believe that this is not an easy country to govern.
The honourable senators are in a better position than I am, obviously, to say whether
or not you think this is an easy country to govern. You have people appearing before you
day after day, and you deal with bills on all kinds of matters. How do members of the
Senate, in the end, see the nature of the state, which results from having large numbers
of constitutionally entrenched enclaves, mini-states within its boundaries?
The Chairman: The expression "mini-state" is also a politically value-added
kind of concept. You want to use the arrangement here in Bill C-9 to describe it as a
mini-state, but I would not describe it that way. I would describe the Nisga'a as a
self-governing entity based on constitutional protection. However, the way in which we
have arrived at the point of constitutional protection is a long one in Canadian
constitutional evolution. You may want to argue with the inclusion of section 35 in the
Constitution Act, 1982, but it is there. That was a political decision of the federal
government and a substantial number of the provinces.
It is a part of our Constitution. What does it mean? The Supreme Court of Canada has
given it reality in terms of land claims and certain other rights. On the question of
self-government, the Supreme Court has said, "We believe that this is a matter for
negotiations among the parties." You now have the federal government and the
provincial government as willing parties to this agreement that is before us. They are
willing, as you clearly point out, under clause 3 to provide it constitutional protect
under section 35.
It appears that you would like to rewrite the principle of the agreement. You want to
go back to delegated powers. Your argument is, if I understand it, partly pragmatic. You
are worried about the future. You would add a clause that is full of conditions of one
kind or another designed to protect the sanctity of the agreement, but, as your main
argument has to be, this too, if it is delegated, is repealable by a future Parliament.
Mr. Scott: Well, that is land claims agreements. I am happy to have land claims rights
entrenched and to have them become property rights and activities that cannot be
interfered with in any way by either level of government. That is exactly what I say land
claims agreements are and should be. I am not wedded to the term "mini-state".
You could call it "units of a third level of government", if that is more
Imagine that at the second level of government, the provincial level, instead of 10
provinces we had 30, 50, or 75. Think about that. How would that affect the country? Of
course, the third level of government does not have powers or resources as wide or great
as the second level. However, it will all have to be administered, and it will all have a
continuing cost in terms of what the justice department must look after.
When you have semi-sovereign autonomous units in increasing numbers, increasing
diversity and increasing powers, what happens to the ship of state as a whole? The Nisga'a
will spend the same dollars as the rest of us. If the economy of this country continues to
do badly and there are poor economic resources and conditions to share, that would not
help the Nisga'a or any other aboriginal peoples, and it would not help any one in the
rest of the country.
I believe that we should not embark on a third order of government. Everything in this
agreement is fine so long as Parliament can revoke the powers of government. That is all
that I propose. Nothing would have to change.
The Chairman: Let me point out to you two things that you know. First, as Senator
Beaudoin has made clear, litigation will change the agreement; when the court says that
something is unconstitutional, that will change the agreement. Secondly, the court has
said that aboriginal rights are not absolute.
Senator Beaudoin: The court said that?
The Chairman: Yes. The court is prepared, under changing circumstances, to review the
nature of aboriginal rights. The Nisga'a are seeking certainty because they have given up
a great deal. One of the certainties they have sought for a long time is the right to
protect the identity of the Nisga'a collective from future changes of opinion in the
national political process. They are trusting the Supreme Court of Canada to supervise
this particular document.
We differ, but so what? We have completely different views on where we should go, but
that is what makes a good debate and a final decision.
Senator Grafstein: You raise an issue that has troubled me. Senator Beaudoin agrees
with you, but I would be interested in the witness's response.
We have heard, Professor Scott, from two eminent senators who are legislators. They
note that, when a difficult situation dealing with complex constitutional matters arises,
once a political decision is taken, the courts should deal with any difficult problem that
I have heard the other case made: that it is one of the responsibilities of the Senate
to ensure, before legislation leaves its house, that constitutional order is clearly
there. What is your view of that? You have heard the debate, what is the problem?
Mr. Scott: I have a problem with the constitutional process that has nothing do with
the Nisga'a agreement or about the constitutional process. If you like this agreement, I
think you should attach it to the act. Let people who have to administer statutes have
access to it. That has nothing to do with aboriginal issues at all. It has to do with the
basic process, and even that has not been looked after.
There are all kinds of issues. One issue that struck me is whether the Nisga'a
legislature will be able to exercize the powers, given to Parliament and to the provinces
under section 33 of the Constitution Act, 1982, to override Charter guarantees of section
2 and 17. The Canadian Charter is made to apply by article 9 of chapter 2, but it does not
say anything one way or another about the override clause.
However, maybe the courts will, as they will be pressed to do sooner or later, if some
aboriginal group will want to override some Charter guarantee, and in one of these
arrangements, that will be attempted, so there will be litigation about whether the
Charter, when it applies to aboriginal governments means that the aboriginal legislature
is equivalent to Parliament or the provincial legislature and can override Charter
guarantees. We have yet to deal with that serious issue.
If we had the time and the inclination, I thought that we could go through this, but
the attitude of the minister is clear even to things like annexing the Charter. It is
expected that both Houses of Parliament will act as rubber stamps, and you are here, like
it or not, to think that changes should or should not be made, but even the most innocuous
change will simply delay matters and must not be made.
Frankly, that seems to be the message from the minister. I am not satisfied with the
process or even about the publication of it. Even on so elementary a matter as ensuring
that the statutes show the law, this prevails over the terms of the statute, so why is it
not included in the statute? This is a poor piece of work. Parliament has been invited to
be a rubber stamp and that is what is expected of both Houses of Parliament.
Senator Beaudoin: I have read in the proposed legislation and in the agreement with the
Nisga'a Nation that the Charter of Rights does apply. It is very well stated that the
Criminal Code and the Constitution of Canada both apply.
The Chairman: All provincial and federal laws apply.
Senator Grafstein: We are making statements, Mr. Chairman.
There is a catch-22 in your argument and there is a catch-22 in sections 35 and 25.
Sections 35 and 25 say that aboriginal rights are yet to be defined. The nice question is
whether or not aboriginal rights, as defined under the Nisga'a Constitution, which might
infringe the Charter, will be caught by the Charter, because there appears to be a
flow-through of sections 35 and 25.
Mr. Scott: The Charter will apply, but can the override clause be used? The Charter
applies, article 9 of chapter 2 says it applies. However, section 33 is part of the
Charter. Can the override be used? That is the question; not whether the Charter applies.
We all know the Charter applies; the agreement says it applies.
Senator Beaudoin: I agree with Senator Grafstein that we should try desperately to
solve all our constitutional law problems and not rely on the court, if we can avoid it.
It is not because I do not like the Supreme Court; it is doing a fantastic job; however,
it is our duty to test every bill and to ask if it is constitutional or not. We are doing
If ever we make a mistake, obviously the bill will be challenged in the court. There is
no doubt in the world that that will happen one of these days. The Supreme Court will then
have to interpret the bill. The Supreme Court will be obliged to say that it is not a
constitutional amendment because we have not followed the formula. It is an ordinary
statute. If it is an ordinary statute, they will interpret the statute.
In the very end, we may need the court. I agree with you. We can do no more than we
have done tonight and what we did last week.
The Chairman: Professor Scott, you have started a stimulating discussion. We have your
evidence and we will consider it carefully. We have other constitutional experts, if I may
call them that, to hear, and we will put your questions to them for their view as well.
Mr. Scott: Thank you, honourable senators, for your warm welcome. I hope that my
evidence will be considered a success rather than the failure of a witness to have
provoked an effective debate here this evening.
The Chairman: Our last witness this evening is Mr. Bill Young of Tillicum Lodge.
Mr. Young, thank you for joining us this evening. Your brief has been distributed to
the senators. You have an interesting background. You are from the Nass Valley and you are
a person from whom we are most anxious to hear. Please proceed.
Mr. Bill Young, Owner, Tillicum Lodge: Honourable senators, I wish to thank you for
allowing me to address you today. Along with my wife, Norma, I operate a company that has
registered fee simple title to 160 acres of land in the beautiful Nass Valley. The Nisga'a
lands completely surround our property. We are one of the largest non-Nisga'a landowners
in the area.
I have read with interest previous transcripts of your hearings and I note that in
Senator Grafstein's words we are members of the non-Nisga'a minority who are most directly
affected by the treaty. We are the hole in the doughnut.
On our land, known to everyone as Nass Camp, we operate a townsite and Bill-Nor
Tillicum Lodge, the only full facility in the valley. We seasonally employ 25 to 30
people, most of them Nisga'a. We have a motel, dining facilities, and houses that we rent
to natives and non-native alike. As in any small community, families live beside each
other in harmony. It is my belief, and certainly the sense I get when I talk to these
people, that we are all proud Canadians living together in this great country of Canada.
When the treaty negotiations heated up, we and other property owners had concerns as to
our futures in the Nass Valley. I had three sources of worry. First, what happens to
private land holdings like ours? Second, what about free access to our properties? Third,
who will have the power to levy taxes on our lands?
I am here to tell you today you that all those questions have been answered to my
complete satisfaction in the Nisga'a Final Agreement. Any fears that we had have been
completely alleviated by the provisions clearly outlined in the treaty. I am referring
specifically to the lands chapter, paragraph 1, page 31. I will say this again so that all
honourable senators hear clearly what I am saying: Our concerns as non-Nisga'a land owners
surrounded by Nisga'a lands were heard during the negotiations and they were addressed to
our complete satisfaction.
The agreement states that Nisga'a self-government will have no jurisdiction over land
currently owned by non-Nisga'a in the Nass Valley. All of the fee simple properties are
explicitly excluded from the Nisga'a claim and the residents of these private parcels will
continue to have the right to vote in federal, provincial and regional elections.
We already have representation on the Nisga'a school district and on the Nisga'a Valley
Health Board. The mission statements and the constitutions of those bodies have declared
that there will always be one elected representative from the non-Nisga'a communities on
those boards. That is representation far out of proportion to the actual numbers of us
living among the Nisga'a.
I want to emphasize, Mr. Chairman, that my political, property and voting rights are
not affected or threatened by the Nisga'a treaty. I am not a Nisga'a, so I simply cannot
see why I should have or want to have voting rights concerning Nisga'a culture, language
and the management of Nisga'a assets such as their lands and resources. I speak for
myself. I recognize that the Nisga'a have the right to establish citizenship criteria in
order to manage Nisga'a government affairs. It is others, politicians who do not speak for
me, who have suggested that I am losing something like a vote that I never had in the
For the past nine years, I have had the honour and the privilege of serving as an
elected member of the Nisga'a Valley Health Board. Our medical centre is named after James
Samuel Gosnell, a gentleman who dedicated his life to a just resolution of the Nisga'a
land question. In his lifetime he appeared before many committees just like yours. Our
facilities throughout the valley are now staffed by a dedicated, courteous and
professional medical team. There is no discrimination based on race, colour, creed or
whether or not you are a Nisga'a. No one is denied the finest treatment we can provide.
Many tourists and visitors make use of the centre and we receive compliments on the
excellent treatment they receive. For this facility, we non-Nisga'a residents of the Nass
must give thanks to both levels of government, especially the Nisga'a. Without their
commitment, we would need to travel 120 kilometres to the already over-taxed facilities in
Honourable senators, I lose nothing under this treaty. In fact, my wife, my employees,
and my neighbours will gain greatly, because we see the Nisga'a communities achieving
their freedom from the Indian Act. As a businessman and a friend, I welcome the potential
growth. I see, in the people I deal with every day, a new optimism and a growing sense of
strength that benefits all those who live in and commit to building a stronger community
in the Nass Valley.
When the new road to Kincolith and a link to the North is completed, I envision a
better future for the whole valley. The road will save lives and the heavy cost of
transportation for medical help. It will strengthen the people, provide employment, allow
tourists and the rest of the world to come and enjoy the splendour, fishing and
hospitality of our people. It will provide a new industry in tourism, which will
contribute to economic stability.
The access to our properties are guaranteed by the laws of British Columbia and our
highways authority. As well, our concerns regarding taxation are addressed in the treaty's
taxation chapter. Our taxes will be levied by and paid to the provincial government. If,
in the future, agreements are reached between governments that allow for the taxation
powers of Nisga'a government to extend to my land, then I would expect my interest and my
rights to be protected and considered in any arrangement. I am an optimist about that,
honourable senators. This agreement makes sense. We share the access and the public
utilities in our territory. Besides, we are all protected by the Charter of Rights and
In conclusion, I wish to recognize the hard work and dedication of the negotiating
teams. The Nisga'a have negotiated themselves into becoming full and permanent partners in
Canada. They will pay taxes and will no longer be wards of the state. They say, and I
agree, that they will no longer be beggars in their own land.
The Nisga'a treaty is an honourable solution that will protect and be fair to all
parties, including third parties and neighbours, like my wife and myself. This settlement
carries with it pride and self-reliance within the Nisga'a nation, and it will be an
example for all of Canada and the world.
As we enter the new millennium, I ask honourable senators to ratify Bill C-9 as quickly
as possible so the Nisga'a, my neighbours, and I can contribute to making the Nass Valley
a beacon of cooperation and a place for all people to enjoy -- a place of which to be
The Chairman: There has been a great deal of discussion in the past over the
divisiveness politically of Bill C-9 in British Columbia. We have heard from Mayor Talstra
and we are hearing from you that we have quite a unanimity of support from the Northwest.
I believe Joanne Monaghan spoke to the House committee as well representing the
Kitimat-Stikine Regional District. Can you explain whether you believe this represents a
general view from that region of the province, or do you feel that you are representing a
special view? Do you think that you are speaking for most people in the Northwest?
Mr. Young: That question brings to mind a call I had from one of the radio stations in
Vancouver asking me if I thought there should be a provincial referendum on this issue. My
answer to that question was no. I likened it to the IWA years ago, when the loggers and
the mill workers joined forces to fight the companies. It did not matter what happened or
what was said by the logging companies scattered throughout little pockets in the
province: everything was controlled by the vote in the Lower Mainland by the mill workers.
If we were to have a referendum in the province of British Columbia right now, asking
the people bluntly if they want their taxes to go up a little bit extra to pay for some of
this up North, you know that the answer would be "no". If you turned around and
asked me if I am in favour of putting my taxes up a little bit extra to extend the
SkyTrain in the Lower Mainland, the answer would be the same, "no".
I have many people working for me who are not landowners. They seem to be very happy
with the arrangements. They are all looking forward to a spirit of cooperation that we
know will come. I think that will be the ultimate answer.
Senator Pearson: We have appreciated your voice of common sense in the midst of quite a
lot of abstract discussion. That is to say, you are there, living the experience and
finding that you have had a part in it. You have been able to have your concerns heard.
When we get to the issue of paramountcy in the agreement, are we not really talking
about issues such as language and whether or not the schools teach the Nisga'a language?
Therefore, if the Province of British Columbia suddenly decided that no school should
teach anything except English, the province would not have paramountcy in that case, the
Nisga'a would. Is that your understanding?
Mr. Young: I see no problem with that. Children of the people who work for me go to the
school. They seem to be happy with it. They just received first-class accreditation from
the Province of British Columbia. Most of the teachers are non-Nisga'a. I do not think it
will cause any problem.
As to teaching Nisga'a as an alternative language, it can be taught in the school and
they can learn the Nisga'a language. It would become part of the curriculum. I went to a
Catholic school in Vancouver and we had catechism for half an hour every day, which kept
us at school half an hour after everyone else. It was part of the curriculum. The people
who were not involved did not have to take it. I see no problem with that.
Senator Pearson: That helps me to understand. That is how I tend to see it, too;
namely, it is in those kinds of areas that they must have the capacity to make decisions.
The Chairman: Thank you very much, Mr. Young, for coming here tonight.