Proceedings of the Standing Senate Committee on
Issue 6 - Evidence, March 22, 2000
OTTAWA, Wednesday, March 22, 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 5:45
p.m. to give consideration to the bill.
Senator Jack Austin (Chairman) in the Chair.
The Chairman: Honourable senators, we are resuming consideration of Bill C-9.
We had as a witness before us yesterday Ms Mary Dalen, and while she presented
her brief, she did not have an opportunity to be questioned by senators. If I
could ask Ms Dalen to take a seat at the witness table, we will continue.
I will ask Senator St. Germain to ask the first question.
Senator St. Germain: Ms Dalen, I apologize on behalf of the committee that we
have had to ask you to stay on because we did run out of time yesterday at the
hearings. We have received your presentation to the committee, and I should like
to thank you again for having travelled this far to make this presentation.
One thing that you brought up was the question of your family traplines. How
is this agreement going to affect the ability to utilize these traplines, if it
is going to at all? Can you explain that to the committee?
Ms Mary G. Dalen: I will present to you a map. My father has a letter dated
1947 that says that the traplines were handed down to them from generation to
generation, and that meant that it was long before the missionaries or the
Indian agents arrived. It looks very small.
Senator St. Germain: Is it this area shaded in green?
Ms Dalen: Yes.
Senator St. Germain: Part of your trapline is in that area, is that right?
Ms Dalen: Yes, but that area is not only a trapline. It is used for
sustenance purposes -- hunting grounds and basic food sources.
Senator St. Germain: I gather that that small area -- it is small on the map
-- is one of the areas of overlap that concerns you and the aboriginal people
that live in Cedarvale.
Ms Dalen: Yes, and the surrounding neighbourhood.
Senator St. Germain: Mr. Chairman, I do not know how many questioners there
are for Ms Dalen. I will pose only one more question. My question is with
respect to accountability.
You spoke in your delivery yesterday of accountability in regards to the
administration of bands. Your people have basically been off reserve for a
number of years.
Ms Dalen: All our lives.
Senator St. Germain: Is your concern for other people mainly? Is that why you
brought up the question of band leadership possibly not being accountable to the
rank and file or the members of the band?
Ms Dalen: That is part of it. All my life, I have lived in Cedarvale, and my
grandparents and parents lived off reserve. They leased their land and this is
how it went. They agreed to have Robert Tomlinson, Sr., take all the lands on
both sides of the river, and then they cleared the land. This land I am pointing
to on the map was not unoccupied before. It was occupied by my father's people
-- my father's paternal ancestors. My father's family was there already.
Senator St. Germain: And Mr. Tomlinson was the minister.
Ms Dalen: He was the Anglican Church minister. That is the way they set it up
to avoid living on reserve.
Senator St. Germain: To avoid living on reserve?
Ms Dalen: Yes.
Senator St. Germain: For what reason? Was this the accountability reason, or
was it that they just sought to live off reserve as a different way of life?
Ms Dalen: What Robert Tomlinson said was that he did not want the people to
be treated the way Indian Affairs was treating people.
On the map, this is where my father's family were. The people that were left,
the people of Gitlusec, lived here. They had 16 houses of assembly, and the
black measles wiped them out. The people that were left lived on the island
here. Robert Tomlinson and my grandfathers came down and they cleared all this
land here, sectioned it off, five acres each, across the river. Indian Affairs
was always around them. They had their own band, called Meanskinisht. I have
been working on this since 1979 trying to get somewhere with Indian Affairs.
That band had numbers, but Indian Affairs seems to be in denial today that there
ever was a Meanskinisht band.
Senator St. Germain: Are these the people they declared all deceased?
Ms Dalen: They thought we were all dead. The band office that I belong to now
was the one that declared us all deceased, because of my father's traplines. The
traplines are on the Seven Sisters Mountains. I will show you. This is on the
Seven Sisters Mountains.
Senator St. Germain: Are the Seven Sisters Mountains in this area here?
Ms Dalen: No, that is the north side.
The Chairman: Shall we include the maps as part of the evidence?
Senator St. Germain: Yes, especially the overlap situation. I think we have a
copy of the maps. They were tabled yesterday as part of the proceedings.
The Chairman: Fine. I notice on one of the maps that you submitted to us that
your land is on both sides of the Skeena River. Is that a correct understanding?
Ms Dalen: Yes. There were two families of Brights; one was my grandfather,
Nathaniel Bright, who married into my father's family. There were two families
of Brights because my father's uncle liked the name Bright, so he took the name.
There were two huge families with the same name. Before that they had Indian
names. I am registered on my father's traplines that I was talking about
yesterday, which we finally got back last year.
The Chairman: Are you status under the Indian Act?
Ms Dalen: Yes.
The Chairman: And what is the tribal community that you belong to?
Ms Dalen: I belong to my father's village band, the Gitwangak band.
The Chairman: And they are?
Ms Dalen: Gitxsan people.
The Chairman: I should like to ask the same question that Senator St. Germain
asked in order that we can understand clearly. You came to talk to us because
your concern about the Nisga'a treaty is what? I do not want to put words in
Ms Dalen: I am afraid that it will act as a template for the Indian people,
especially individuals like myself. My father acted as an individual. He abided
by the laws of Canada and British Columbia, and so did my grandfather.
The Chairman: Could I put this to you, Ms Dalen? Your fear is that if the
Gitxsan entered into a similar agreement, it would give powers to a tribal
council to take rights away from you.
Ms Dalen: From individuals, yes.
The Chairman: If there are no other questions, I thank you very much for
appearing both yesterday and today and assisting us with your evidence.
Honourable senators, our next witness is Alex MacDonald, Q.C. I might say, as
he is coming forward, that by my recollection he served as attorney general for
British Columbia from 1972 to 1975.
Mr. Alex MacDonald: That is when I gave myself my Q.C.
The Chairman: That is not an unprecedented thing for politicians to do. When
you are ready, I would ask you to proceed.
Mr. MacDonald: Honourable senators, I come to speak to you about the
constitutionality or lack of it of the Nisga'a agreement. I do not want you to
think for one minute that I do not believe in negotiations with native bands or
that I do not believe in affirmative action programs on the basis of need -- not
the legalities, if I may say so, but on the basis of need. As attorney general,
when I had the honour of being in the legislature with Frank Calder, one of the
first things we did was to --
Senator Grafstein: Mr. Chairman, I know of Mr. McDonald's background. Would
not it be appropriate in the circumstances for him to give us a line or two or
three about his background? We know him in several capacities, but I think for
the purposes of the record it would be appropriate for all the committee members
to have his record. I have not heard or seen him for a long time.
Mr. MacDonald: I am a former member of Parliament, and I served time in the
B.C. legislature for 26 years, which is quite a long time to serve. I have been
a practising lawyer. I have been in the Supreme Court of Canada many times. I
taught children at the University of Simon Fraser for 10 years, among other
things, on the Constitution of Canada. I had, incidentally, native children
there, native young people, in my classes. I established a law school when I was
attorney general and insisted that there should be native applicants. Some of
them did extremely well, and we have had a distinguished judge as a result. As
attorney general, I set up a native court worker system. I knew all about Frank
Calder's case in 1976, and I was pleased with it in the sense that it would
bring the problems of native communities to the table. They were being ignored.
Nevertheless, when you have a treaty like this, honourable senators, of 252
pages, and you entrench them in concrete -- I do not think I would have to go
further than that. I think you have already heard enough to know what I am
talking about. When you make it unchangeable except for a constitutional
amendment or agreement, and agreements come at a price, then you have made a
grave mistake, and what you have done is in violation of the Constitution.
I know that the agreement says that it is not changing the Constitution. It
is. It is allowing a sovereign entity to make laws. They may be minor, or they
may be sufficient to send someone to jail on breach of a bylaw -- I do not know
-- but that is changing the Constitution.
It says that the Charter of Rights shall apply, and if I were speaking more
slowly I would read the section about that, but then it says that the Nisga'a
government is a free and democratic government. That comes from section 1 of the
Charter, and that section therefore is of no effect. That section allows the
limitation of rights like freedom from discrimination, but it says it is subject
to limits that are justifiable in a free and democratic society. When this
agreement says that the government structure is free and democratic, you have
eliminated, for all practical purposes, the Charter.
Because I have to push right along, let me give the main reasons. This is the
first time this has happened, and it is almost unbelievable. When Parliament
makes a treaty by its legislation that gives power to a group of Canadians --
and I do not mind who they are, whether a very deserving group like the Nisga'a
people or a Scottish community or anyone else -- and surrenders some of its own
power to a group of other Canadians and cannot retrieve that power because it is
cast in constitutional stone under section 35, it is making a grave mistake. We
can delegate. Had we done this, I would not be here today. Had we given
municipal status to the Nisga'a people, they would be the majority, and they
would make the by-laws and so forth, and it would be a delegated power. However,
to kiss power goodbye is not only a mistake for a Parliament or legislature to
commit, but it is unconstitutional. You are part of the Parliament of Canada.
You can delegate your law-making powers. That happens all the time. You cannot
Some English judge -- perhaps he was an Irishman, but nevertheless, what he
said was true -- said that Parliament is omnipotent in all except the power to
destroy its own omnipotence. You are doing that in this treaty. Once it is
passed, the 252 pages are cast in stone. If there are problems with their
implementation, there is nothing you can do about it.
If it were a municipal act passed by a provincial government, then you know
perfectly well, as experienced people, that in three or four years there would
be problems with that act and a committee of the legislature would meet and make
amendments to the act. You cannot amend this agreement except by a
constitutional amendment. The lawyers will take over, and there will be an
infinite number of cases as to how far this applies and how far that applies. It
is a meal ticket for the legal profession, and not at McDonald's.
The first point I make is that you cannot abandon your power under the
Constitution. You can delegate, but this is an entirely different thing.
I have a written brief in here, and you can read it, but someone asked me
about the administration of justice because I was an attorney general. If you
look at page 81 of the treaty, you find that, temporarily, law enforcement
officers can go in to enforce the law. However, there is a section on page 185
that establishes the right of the Nisga'a council to have its own police force
and, in effect, its own police board, because the appointees to that can only be
recommended by the Nisga'a band, as well as a limited court system.
As attorney general, I was charged with the administration of justice in the
entire province. That is mandated in section 92(14). That mandate has now been
clipped. The ability of police forces to go in and investigate is severely
limited, if it exists at all. The ability to manage police forces is severely
limited. If you gave an ethnic community of any kind not municipal power, but
power of this kind, misbehaviour would creep into city hall one time out of 100,
but that is very serious.
In any jurisdiction, when someone who was assaulted believes that the powers
that be are not investigating the case properly, or are favouring someone, the
attorney general has the responsibility to correct that. The attorney general
controls police boards. He or she can direct the RCMP to take over
investigations in a municipality. In the justice section, the ability of the
attorney general to administer justice in the province has been severely
clipped, and that is unconstitutional.
As clearly stated in section 17, I believe it is, of the BNA Act, the
Government of Canada consists of the Queen, the House of Commons and the Senate.
The provincial legislatures are similarly constituted. Every law that is passed,
even innocent bylaws, derives through that, which I call the royal prerogative.
This bill gives a body sovereignty to make some laws itself without the Queen's
assent or Parliament's assent, without it being changeable, which is a violation
of the Constitution of Canada or the royal prerogative.
Section 15 of the Charter of Rights and Freedoms says that everyone is equal
under the law and entitled to equal benefits and treatment under the law. Does
that apply to this treaty? It certainly applies to the legislation you are now
considering. The Charter says "without discrimination." It is
inevitable that there is discrimination in this. The most glaring example, but
not the only one, is that people ordinarily resident on Nisga'a lands would not
have a vote. That is a violation of section 15 of the Charter. That is unequal
treatment under the law. In the case of some other native bands, such as
Westbank, 1,000 or 1,500 people would be affected. That is a very dangerous
precedent to set. A person may be arrested, fined and jailed pursuant to a
bylaw, yet have no voice in the government that made the bylaw. That surely is a
Recently, the Supreme Court of the United States, in a case emanating from
Hawaii, said that discrimination under the law in denying a vote in a public
body is unconstitutional. That was a seven-to-two decision. I say that this
special status offends section 15 of the Charter.
Section 15 goes on to speak of affirmative action programs, with which I
totally agree. The native court workers program was affirmative action based on
temporary need.You cannot call this treaty affirmative action under section
15(2) of the Charter of Rights.
I will talk for a minute about the law that has been decided by the courts of
Canada. The famous Delgamuukw case cast a claim cloud over all the lands of the
Province of British Columbia. It was for self-government and for lands. It went
to the Supreme Court of Canada, which dealt only with the land claim and
referred it back for further litigation. It did not touch on the question of
self-government. However, the British Columbia Court of Appeal did. In that
case, it ruled very carefully on whether sovereign self-governing powers could
be granted to any group or community in Canada. The leading judgment in that
case, that of Justice Macfarlane, said that in the Constitution there is no room
for a third level of government, which this is. It may be limited, but it is
there. There is a section in here that says that when any laws of Parliament or
the legislatures are inconsistent with this agreement, the agreement prevails.
That is a third level of government, and there is no room for it. That was the
decision of the B.C. Court of Appeal, the highest current judicial decision in
Canada. No other Court of Appeal has touched this question, including the
Supreme Court of Canada, and the Court of Appeal of British Columbia has said
that it is unconstitutional.
Forget that we are talking about the very fine people of the Nisga'a band and
think of doing this for any other group in Canada. This bill says that everyone
shall have rights, but some shall have more rights than others. If you had tried
that out on Pierre Elliott Trudeau, how far would you have gone? You would have
been laughed off the stage. I am sorry to say that that is what is happening in
this agreement. It provides for special rights that people in other
municipalities do not have, and that is unconstitutional. There is no room in
the Constitution to allow that.
Another thing in here that I think is rather cheeky is the provision that
says that once the treaty is enacted, a door slams shut. It says that the
Government of Canada cannot challenge the validity of its terms or support a
challenge to the validity of its terms. There can be a change of government in
Canada. It is extraordinary to say that the new government could not launch a
court reference or support a challenge to a certain aspect of this agreement.
This is a trap that will slam shut.
I strongly suggest to this committee that the Senate should not reject this
but that it insist that there be a reference on the constitutionality of the
treaty to the Supreme Court of Canada. That fight is going to come anyway. There
are citizens who will launch that case, and it would reach the Supreme Court of
Canada perhaps in five or six years. It should not wait that long. The chance to
make a reference is now, because once the treaty has been agreed upon, as I say,
the trapdoor slams on a reference. That is the logical thing to do. You then
carry on with your debate on the merits and the justice and the social justice
of what we see before us, but you do it in the light of the opinion of the
Supreme Court of Canada. That opinion is coming sooner or later; better sooner.
Thank you, Mr. Chairman.
Senator St. Germain: Thank you, Mr. MacDonald, for attending. For
clarification, the government you served and have supported in the past is
obviously the same government that is now in power in British Columbia. That is
just for clarification so that people know the background of your political
Mr. MacDonald: I know, senator, but I am an unreconstructed socialist.
Senator St. Germain: I do not happen to be a law professor or a lawyer or
have the experience that you have, but I understand that the agreement clearly
states that the Nisga'a people will abide by the Constitution and the Charter of
Rights in this country. Yet, you are putting it in question under section 15.
The agreement, in my understanding, says that, and yet you are saying something
different. I have asked the Nisga'a people about this, and they have clearly
stated that the Charter and the Constitution apply to everything that they do.
Yet, when you talk about section 15, you say that it does not apply.
Mr. MacDonald: If you look at page 18, paragraph 9, it says:
The Canadian Charter of Rights and Freedoms applies to Nisga'a Government in
respect of all matters within its authority, bearing in mind the free and
democratic nature of Nisga'a Government as set out in this Agreement.
The exception is if they are justifiable. They have used the same phrase. The
Charter is being snookered in this case. "Justifiable in a free and
democratic society." Those are the same words. They have said that breaches
of rights in the Charter by the Nisga'a government are all right because they
are acceptable in a free and democratic society, and this is one.
Do not take that -- I should not talk like that. Do not think that the
Charter of Rights will apply. If it applies, how could you deny people the right
to vote? I know the voting section in the Charter section 3 applies only to
provincial, municipal and federal elections. I know that. However, the equality,
the right of Canadians to equal treatment and benefits under the law, is in
section 15, and I am sorry to say it is being violated in this case. It does not
get violated when you have good programs to help people, particularly in those
native communities where the needs are terribly great for land, for cultural
protections, and for social advancement.
Senator St. Germain: I thank you for appearing. Thank you for explaining. Do
not restrain yourself in any way, shape or form in answering any of the
questions. I am sure you will not.
Mr. MacDonald: By the way, I am not retained by anyone. I think it might be
too late for that.
The Chairman: It is not often we have an unreconstructed socialist before us.
We will not ask you your opinions about the Senate.
Senator Chalifoux: Good evening, sir. It is an honour and a pleasure to have
you here before us.
Mr. MacDonald: It is my honour.
Senator Chalifoux: I am from Alberta and have been involved with aboriginal
issues in Alberta and somewhat across Canada for many years. I should like you
to explain to me a little bit about policing. In Alberta, several of the
reserves have their very own police force. They have been trained by the RCMP,
and they are totally controlled by the band councils. They are working quite
well. In one reserve in Hobbema, they have a jail that is totally controlled by
the band council, working within the Solicitor General's rules and regulations.
It seems to be working very well.
If these are used as examples of possible good, regulated police forces
within the organizations and within the aboriginal nations in Alberta, why would
it not work with the Nisga'a?
Mr. MacDonald: The Nisga'a should have their own police force. The City of
Vancouver has its own police force. However, it is under the general law. In the
last resort, when things go wrong -- and they will with any community -- the
Attorney General and the government under the Constitution have a duty to
correct those wrongs. The Province of Alberta retains that today.
I am not objecting to the separate police force in the slightest. I am just
objecting to the lack of oversight and superintendence in the general public
interest, including that of some of the people of Nisga'a ancestry and some
members who are not.
Senator Chalifoux: I have one more comment about the Nisga'a court. We just
had one aboriginal judge appointed in the Tsuu T'ina Nation, and there is also
one in the Peace River country. They are holding court within the reserves and
appear to be doing very well on that. They are able to take and make appeals.
I am reading just a brief on the agreement here, but it indicates that the
final decisions by the Nisga'a court may be appealed to the Supreme Court of
British Columbia on the same basis as decisions made at the Provincial Court of
British Columbia. There are safeguards in this brief. I should like your
response on that.
Mr. MacDonald: In terms of court appeals, the safeguard is there. However, if
you are trying to protect people through law and order, if you want it put it in
that way, the investigations are very important. Will they be done properly? The
police forces are very important. They are the ones who initiate charges if they
are warranted. The prosecutor is very important. The police board is very
important, as it has the superintendence over the police. If there is any
misconduct or if they are lax about prosecuting a particular person, the police
board is there. However, over all is the Attorney General of the province with a
responsibility. If things fail, that responsibility is there.
I am not objecting at all to the separate police forces or the courts. That
is a very creative thing that Alberta is doing. Certainly you should have native
judges. However, the Constitution demands that you have a general, final
oversight by the elected representatives of all the people.
Senator Grafstein: Welcome, witness. I found your testimony interesting and
stimulating. I was not here the other day when Mr. Doug Sanders from the
University of British Columbia gave his evidence, but I have reviewed that
evidence and find it distinctly different from yours. I will just point to one
or two issues to get your view. Let me read a short paragraph:
The year 1982, then, does represent, I think, something of a watershed, in
that we come to terms in constitutional language with the fact of our colonial
history and the continued existence of Indian communities within the country
that have not been assimilated and who are determined to continue as distinct
communities within the Canadian society.
Here is the sentence that is of interest, I think:
Once we constitutionalized those rights in 1982, the older idea of a simple
division of authority between the two levels of government was gone.
Mr. Sanders goes on to say:
We also abandoned another fundamental principle in 1982, which is the idea of
parliamentary supremacy, that the Constitution simply divided authority between
two levels of government. The Charter represented a major change in Canadian
constitutional life by creating limitations on the powers of both federal and
provincial governments, something totally different from the scheme of the
Constitution Act of 1867.
I take it that Professor Sanders is arguing the traditional position -- and I
am not characterizing them fairly -- but the argument that you made has been
diluted by 1982, in the Constitution. Could you give us your thoughts about
Mr. MacDonald: Whether it was wise or not to say in 1982 that future treaties
will be constitutional is another question, but no court has said that you must
make a treaty. It is there: you can make a treaty. It does become cast in
concrete, and you can do that, but no court has said you must. As a matter of
fact, I believe the former chief justice of the Supreme Court, Antonio Lamer,
said that you need not make treaties.
There are other avenues. In British Columbia we have the Sechelt band, where
the Government of Canada and the province have united to confer municipal status
on a native band. It needs joint legislation. That is fine. It is that extra
step. Back in 1986, in attempting to warn my own party, I wrote an article for
The Vancouver Sun. It is that final step that is so serious. Do not embed the
Nisga'a accord in constitutional controversy.
Senator Grafstein: Much of what you say commends itself to me, but I am
trying to put it fairly for myself while I deliberate about this.
What you are saying is that if errant governments -- provincial and federal
--decide to proceed by a treaty by agreement, does that agreement not take it
out of section 15 in this example and move it to sections 25 and 35? Therefore,
it may be politically incorrect, it may be politically undesirable, but one
legislature and the other side have come to the conclusion that this is what
they choose to do. I do not wish to hear the political arguments. We have heard
political arguments. I am trying to wrestle my mind around the constitutional
basis of what you are saying.
Mr. MacDonald: Do you think that by crafting into a treaty something that is
clearly a violation of human rights, the legislation that authorized the treaty
does not need to conform to the constitution? That is what we are talking about
here. We have not reached the treaty stage. That must be constitutional. That is
what is being tested here and that is what we tested in court. When it gets to
that later stage, you are right.
Senator Grafstein: Let me take it the next step. I have agreed, prior to this
evidence being presented, that it seems that the Nisga'a constitution and the
treaty are deficit in the fact that non-Nisga'a residents on Nisga'a lands do
not have the vote. They do, very clearly, have the right to fully participate in
making their views felt and to present their viewpoints. They have a right of
strong representation. Their views must at least be considered, if not agreed
with. We have been told by the Nisga'a representatives that, in effect, that is
almost equal to, if you will, rights under section 15.
Mr. MacDonald: Is that equal protection under the laws?
Senator Grafstein: I am not agreeing or disagreeing, I am saying that that is
the argument that has been made. I want your thoughts on that.
Mr. MacDonald: The right to be consulted can be very important or it can be
nothing, but the right to vote in a democracy is fundamental. I mentioned the
example of a bylaw that is passed that affects the zoning of your property or
something of that sort, and you have no say. You may disagree with it, but at
least you have had your ballot. That is a fundamental democratic right and any
infringement of it is an infringement of section 15, which provides for equal
treatment under the laws.
Senator Grafstein: Again you have created another issue for me that we have
heard but that you put in a different way, and that is the question of
paramountcy of powers. Under the Nisga'a treaty, as I read it, the federal
government retains, for instance, powers of labour law, and provincial
governments retain their power of labour law. The representative of the B.C.
Federation of Labour came here and said it is okay with us because federal and
provincial laws apply.
Mr. MacDonald: In labour relations, right.
Senator Grafstein: If you take a look at the other powers that are paramount
to the Nisga'a council, what powers do you think are deleterious in terms of
giving the aboriginals an opportunity to develop their own lifestyle? What
powers are deleterious to the Constitution?
Mr. MacDonald: You are not speaking legally; you are saying what policies
might the Nisga'a adopt that were not good policies in terms of social
development. Is that correct?
Senator Grafstein: Yes.
Mr. MacDonald: What might they do? Well, the fact that they can make laws
that trump federal and provincial laws is the thing to which I object. If the
municipal status was granted and they had the right, with a majority of Nisga'a
people naturally, to make zoning laws, to make laws about speeding or not
speeding on the highways, I would hope they would be good laws and I would
thoroughly applaud that. However, in the next step that you take to give them
sovereign power, that is where the unconstitutionality creeps in.
In my written brief I give an example -- as you say, it is innocuous -- about
adoptions. It is a power that belongs to the Province of British Columbia and
now it is being transferred to the Nisga'a people. There may be a different
emphasis here. They are very fine people, but you are setting a precedent when
you take the constitutional power of the Province of British Columbia and
abandon that to a group of citizens. It is the unconstitutionality that I am
speaking of, not the merits or the demerits of what the Nisga'a people might do.
Senator Grafstein: In your view, what then is the difference between
delegation and fettering the federal or the provincial government's discretion?
In other words, we can delegate the federal and provincial governments to
Mr. MacDonald: Yes, and take back.
Senator Grafstein: Here they have delegated with a fetter, and you are saying
that the fetter makes it unconstitutional.
Mr. MacDonald: Yes, because when you delegate irretrievably you have
abandoned. Your great grandchildren, with all due respect, will have this
agreement in front of them; they will be voting for federal MPs, and they will
not be able to change a word. That is serious. Who knows how it will work out?
That is abandoning. This abandons. If it were delegation like the municipal acts
of the province, I would be in favour.
Senator Sibbeston: We are in an era in our country where aboriginal rights
are entrenched in the Constitution. We have had our courts, including the
Supreme Court of Canada, delineating what these rights are, and they have been
expanding. The native people, in particular, talk about inherent right to
I am of the belief that self-government can never be delegated. Do you really
understand inherent right to self-government? That is the notion that aboriginal
peoples have the same authority, the same government as it were, to govern
themselves as they did before non-native people came to the country.
My understanding of the process that we are addressing here is that we are
really just giving back to the aboriginal people the rights they held before
Canada came into existence. After hearing you, Mr. MacDonald, I wonder if you
would consider examining your views to see if you are somewhat paternalistic?
You speak too much from your own sense of law and order and you do not give
enough credit to the Nisga'a and the other aboriginal peoples of Canada. With
the new treaties, they can set up their own self-government institutions and run
their own affairs.
By this Nisga'a treaty, you will see aboriginal people basically getting on
their feet. We have a bad history in Canada. The status quo does not work. Beads
and blankets do not work any more. Are you surprised that we are now venturing
into a whole new era where native people finally have their rights and can
assert themselves to reach an agreement such as this? Are you not hopeful,
through this, that eventually native people will get on their feet and be
contributing members of Canadian society through this process?
Mr. MacDonald: Since the dawn of history, no occupied land has not been
stolen. No culture has not been a blend. You can go to Ireland today, which is
Britain's first colony, and you can speak to the people who have been terribly
oppressed by the occupation of the British with their religion and their civil
rights. The Irish were forced into immigration and poverty. Their lands were
stolen. Would you seriously say that you do not look at the needs of today? In
Ireland, if you brought up a question about a land claim, you would be shoved
away. They would not hear about it. It has happened all over the world.
I stress again, senator, that I am not opposed to negotiations with native
bands nor to working out agreements. I should like to make sure that they are
based on need, as I have said, and not on the legalistic particulars of the
situation, whatever those may be, but I am not opposed to that. That is a new
start in terms of relations with the aboriginal peoples of Canada, but do not go
that further step and freeze it irrevocably in constitutional concrete. It is
that further step that is unconstitutional.
The Chairman: Thank you very much, Mr. MacDonald, for the answer.
Senator Sparrow: The constitutional aspect, under the agreement, requires
agreement of all three parties for an amendment. That means it is very unlikely
it would be changed in any event, but if an agreement were reached to amend,
would it still require a constitutional amendment? Would the constitutional
amending formula still apply if the parties agreed to a change?
Mr. MacDonald: No. The treaty would be constitutional law. If the treaty said
that the three parties could amend section whatever, then they could do so. You
can amend by agreement with a price. You give out particular rights and then you
go to people and ask them to surrender something, to change something. There is
a price for that but it can be done.
Senator Sparrow: If there were no agreement of the three parties and the
Canadian people through their governments wanted to change something, would that
make it a constitutional amendment?
Mr. MacDonald: They would have to change the Constitution and change section
Senator Sparrow: Would it be all of section 35 or that section affecting the
Mr. MacDonald: I refer to the section that says that treaty rights are
recognized and affirmed as if they were constitutional. They would have to
change that in a federal-provincial conference. Amending the Constitution of
Canada on a matter of this sort is, for all virtual purposes, impossible. There
would be a great outcry.
Senator Sparrow: The Minister of Indian Affairs appeared before both the
House of Commons committee and this committee. He stated emphatically that the
agreement does not amend or alter the Constitution. He would hardly be able to
say that without the advice of his legal advisors.
Mr. MacDonald: I know that was said. It was said in the B.C. legislature that
it does not change the Constitution. However, at page 18, the agreement states
that in the event of an inconsistency or conflict between this agreement and any
federal or provincial law, then this agreement will prevail to the extent of the
That is a constitutional change. You have never heard of that before. No
other democracy -- Australia, the United States -- would ever write such a
thing. That disenfranchises future generations. It is inconsistent with the
Constitution, whatever they say.
Senator Andreychuk: What if your position is correct in law? We have seen the
agreement go through the B.C. legislature and the House of Commons. No doubt the
Nisga'a people have traded away some of their benefits as they saw them to make
this compromise. It is a shame that there was not a full and fair debate
earlier, but we are sitting here in the Senate.
If we were to do something other than pass this piece of legislation at this
time, what in your opinion would be the fall-out, particularly into relations
over the next 10 years in British Columbia between the aboriginals and
Mr. MacDonald: The fall-out either way is will be very difficult. The
expectations of native Canadians are way up in the sky. We have created those
expectations. Apparently, 110 per cent of British Columbia so far is under such
claims and the expectations are high. I do not suggest that you reject it, but I
do say that you get the court opinion first. You can do that just along
Wellington Street by a quick reference from Jean Chrétien and his colleagues to
the Supreme Court of Canada as a matter of major public importance. Of course,
there will be objections from some of the native communities on that, but you
are not denying them the benefits of the agreement, the lands and the other
things. Much of that is needed and will be well used.
You are asking if it should be a treaty. If we make it a treaty, will that
not be an upset with even greater fall-out and huge legal expenses later on?
Senator Andreychuk: If the Supreme Court reference that you are alluding to
confirmed that this piece of legislation is fully constitutional, would that
satisfy you and all of your worries?
Mr. MacDonald: Yes. I would have to pack up. I would disagree with them, but
it would not be the first time that I have disagreed with the Supreme Court of
Canada. That would be the law of the land. Everyone would have to be satisfied
The Chairman: Thank you, Mr. MacDonald, for your contribution to the evidence
before the committee.
It appears that this is constitutional law advice night in the Senate, and
tomorrow morning we will continue in that line. We have some additional
witnesses on the constitutional questions that you have addressed. Perhaps you
would stay and listen to their evidence.
The next witness was scheduled to be Melvin H. Smith, Q.C., from British
Columbia. Mr. Smith has had a long career as a constitutional advisor to various
provincial governments in British Columbia, although I hasten to say not to the
one that is in office at the moment. Mr. Smith has written to the committee,
dated today, advising that, due to ill health, he is unable to travel to Ottawa.
He has asked that we hear his former assistant, John Weston, on his behalf. I
have no objection, Mr. Weston, to that request. I would ask you to come forward
and provide us the evidence that Mr. Smith would have provided.
Mr. John Weston, Managing Partner, Pan Pacific Law Office: I was not only an
assistant to Mr. Smith but also a great admirer of him. You will know more when
I explain something about Mr. Smith.
Mr. Melvin H. Smith, Q.C, is well recognized as one of Canada's leading
experts on constitutional affairs -- something he addresses from the heart as
well as the head. He spent 31 years in the public service of British Columbia. A
lawyer by profession, from 1967 through 1987 he was the ranking official on
constitutional law for four successive provincial administrations. I should add
that one of those was an NDP government. He was a key player in the patriation
of the Constitution in 1981. When he left the field in 1987, he was the longest
serving official on the subject in Canada.
Until recently, Mr. Smith had been spending time as a consultant, a
commentator on public issues, a writer and a university lecturer. Mr. Smith had,
up to the last minute, hoped to join you this evening in person. However, he is
plagued by a life-threatening cancer and informed me at 7:00 p.m. last night
that he was too ill to travel. I was both disappointed that he could not address
you himself and honoured to deliver words on his behalf. I said that his illness
was life-threatening but did not use the word "terminal" for good
reason: he was in similar straits two years ago. Buoyed by prayers from a large
circle of friends and admirers, he fought back from the brink.
Mr. Smith has demonstrated consistent willingness to stand up against
overwhelming odds and challenge the status quo where he feels that it has
frustrated Canada's development as a nation. One example was his successful but
then unpopular fight against vetoes for constitutional change. Some consider him
the father of the Vancouver formula, which, in our Constitution, allows for
change to happen carefully but does not suffocate it. According to B.C.'s most
listened to radio talk show host and a former B.C. minister in charge of
constitutional affairs, Mel Smith has made an enormous contribution to Canada,
more than any other person that commentator has met.
With those words, I find myself in the unlikely position of delivering
remarks on behalf of someone who was at one time my boss -- someone who acts
without fear or favour and someone who is admired by many. As I proceed, please
remember that the following words are the remarks of Mr. Smith and not myself.
Honourable senators, I apologize for my absence this evening. I have spent
the better part of my professional and a large part of my personal life working
to preserve and protect the Canadian Constitution. I regard these hearings as an
historic occasion and would have dearly loved to give my comments in person.
Poor health has confined me to home, however, and I therefore asked John Weston
to convey to you my thoughts on three issues and then to provide a simple but
First, let me comment on the effect of this treaty overall. I am of the view
that if this final agreement is an example of the 50 or more land claim
agreements or treaties yet to be negotiated in B.C., then, at the end of the
exercise, Canadians will wake up to discover that their federal and provincial
governments have substantially altered forever our economic, social and
political fabric. We will discover that our governments have greatly diminished
Canada's public land and resource base, the greatest source of our wealth. They
will have turned over much of their taxing power to native bands and will have
paid out billions of dollars in cash compensation.
The effect will extend beyond the boundaries of British Columbia, as no
native band in the country will be able to resist the temptation at least to
consider the reopening of treaty negotiations for other treaties in Canada, none
of which provide the entrenched third order of government provided in the
Nisga'a Final Agreement. If the agreement passes, we will find that you in the
Senate and the other provincial and federal leaders involved will have
constitutionally entrenched a native-only commercial fishery and authorized and
financed an array of 50 or more ethnic-based governments whose laws supplant
federal and provincial laws.
Having just addressed the effect of the treaty overall, I should now like to
touch on a specific issue, namely, whether the Charter of Rights will apply to
protect the interests of people governed by the Nisga'a Final Agreement. This,
Senator Grafstein, touches directly upon your questions. The discussion tends to
revolve around the interpretation of two key sections in the Charter and one
section in the agreement itself. First, we have paragraph 9 of chapter 2 of the
agreement, which states as follows:
The Canadian Charter of Rights and Freedoms applies to Nisga'a Government in
respect of all matters within its authority, bearing in mind the free and
democratic nature of Nisga'a Government as set out in this Agreement.
Some people have argued that this clause makes it plain; the Charter applies
to all laws to be passed by the Nisga'a legislature. Nothing could be further
from the truth. Those words are nothing more or less than window dressing. There
is no way, short of amending the Constitution, to dictate how the Constitution
will apply to other laws. While this paragraph 9 may have constitutional
protection itself, it stops short of expressly amending the Charter of Rights.
It is the Constitution itself and the Charter of Rights itself that dictate what
laws apply to the Charter.
Another key section is section 32 of the Charter of Rights, which reads as
(1) This Charter applies
(a) to the Parliament and Government of Canada in respect of all matters
within the authority of Parliament$; and
(b) to the legislature and Government of each province in respect of all
matters within the authority of the legislature of each province.
There, you have it. The Charter applies to the laws of the Government of
Canada and the laws of the Province of British Columbia. Are Nisga'a laws in
either of those categories? I do not think so. I doubt very much that the
When the issue comes before the court, as it certainly will, a court will
look at those few self-serving words in the treaty I have already mentioned and
simply say, "We are not bound by that. We are going to look at the Charter.
The Charter tells us to what it applies and to what it does not apply." If
there is any doubt, look at section 25 of the Charter, which the committee has
been examining tonight. It states as follows:
The guarantee in this Charter of certain rights and freedoms shall not be
construed so as to abrogate or derogate from any aboriginal, treaty or other
rights or freedoms that pertain to the aboriginal people of Canada$
On both grounds, the Charter of Rights more than likely does not apply to the
laws to be passed by the Nisga'a. Anyone who says it does and points to this is
merely giving a salve to those who raise the issue. It is an opiate to tell us
that everything is all right.
There are people who persist in saying the Charter of rights will prevail
even over Nisga'a laws. Even they must confess we have no certainty -- that is,
no kind of court decision that deals with this or an equivalent kind of issue.
We must therefore put in place some mechanism to facilitate a speedy review by
the courts, a review that predates implementation of the agreement. Only then
can we, with certainty, avert the disaster caused by bringing an illegal
document into law, a document that, like the Berlin Wall, will have to be pulled
apart, brick by brick, through endless litigation.
Before I reach my conclusion and recommendation, I should like to address one
more question: Does the treaty attempt to change our Constitution? One way or
another, the answer to this question is simple. It is "Yes" or
"No". If the answer is yes, then a constitutional amendment is
required, which can only be done by way of Canada's constitutional amending
formula. Constitutions are meant to be basic governing laws that are difficult
to amend and are not to be changed, except with great forethought on behalf of
the generations of people who will be affected. If the answer is no, if the
treaty is not an attempt to amend the Constitution, then mere passage by the
B.C. legislature, the federal Parliament and the Nisga'a tribal council should
People who say the treaty does not change the Constitution argue, as we have
just heard, that section 35 of the Constitution Act of 1982 anticipated treaties
with provisions like those before us. Section 35 affirmed then existing
aboriginal and treaty rights and was changed subsequently to include subsequent
land claims agreements. Supporters of the agreement have to rely on that section
as adequate authority for bringing into law this massive change in the way we
govern ourselves. I ask this committee to look back at the debates that
accompanied passage of section 35. At that time, did the House of Commons, the
Senate or any of the provinces accept the idea that section 35 allowed for a
third order of government in our country?
You are aware that many of the powers in the Nisga'a treaty surpass those of
the federal and provincial governments. In fact, we will be creating sweeping
powers that will be transferred, powers equivalent to the creation of an
independent state within the boundaries of Canada. Those laws include the power
to make law concerning the rights of citizens to regulate businesses, the power
to amend the Nisga'a constitution itself, to appoint judges, to police citizens
and to impose taxes. The list goes on and on. I believe the legislative powers
given to the Nisga'a parliament, which is yet to be established, are
unconstitutional because they amount to a diminishment of legislative power by
both the federal and provincial governments.
You will hear that this is nothing more than a form of municipal government.
It is much more than that. There is no analogy with the municipal illustration.
Provinces can always take back or amend powers delegated to cities, but such a
change cannot be done to the provisions in the treaty once it becomes law. This
is not a case of merely amending the Indian Act, honourable senators. This is a
case of trying to use section 35 as a back door to abdicate powers from our two
major levels of government. Such an abdication of power was never contemplated
by the framers of section 35 of the Constitution.
The point is that a government can do many things by enacting laws. It can
act wisely, and it can act foolishly. It can give away vast tracts of land or
large amounts of money, and the Constitution of our country will not stand in
the way. But the Constitution does not allow a legislature to give away forever
its rights to legislate. That is precisely what the legislature of B.C. has done
and what the Senate is considering to do today.
If this example is followed in 50 other treaties, a great part of B.C. will
no longer be under the legislative jurisdiction of the Province of B.C. or
Canada -- forever. I am not the only one who fears this result. Mr. MacDonald --
and it is ironic that Mr. Smith would refer to Mr. MacDonald without knowing he
would follow Mr. MacDonald on the witness roster -- a very distinguished member
of Parliament for many years and later a member of the B.C. legislature, was the
attorney general in the NDP government from 1972 through 1975. He shares my view
on the unconstitutional nature of the Nisga'a treaty. We have already heard
these words, but I think they are worth repeating. Legislatures cannot abandon
forever even one iota of their constitutional powers, says Mr. MacDonald. Never
can they do this. Parliaments are omnipotent in all save the power to destroy
their own omnipotence. The Nisga'a Final Agreement attempts to destroy the
omnipotence of the legislature of the Province of B.C. and the Parliament of
Would Lucien Bouchard accept the terms of the Nisga'a Final Agreement as the
contract between Quebec and Canada? You are probably better able to answer that
question than I, honourable senators. Please realize the unprecedented nature of
the claim that is being made of senators today. This is the first time in
Canadian history that a land claim agreement has ever included self-government.
We have 14 self-government agreements in the Yukon, but they are outside the
Yukon treaties. They are separate agreements. The reason for that is that the
legislatures did not want to constitutionalize the self-government provisions in
case some changes had to be made further down the line. What they have done in
the Yukon is perfectly constitutional because they have kept the self-government
provisions outside the treaty.
If I were before the House of Commons, I would urge you to make many changes
to the treaty. Most important, I would ask you to sever from the treaty the
self-government provisions in chapter 11 and put them forward as a separate
chapter. I realize the Senate may not, practically, be able to contemplate such
a serious change to the treaty at this point. I therefore have another
suggestion that I will make in my conclusion.
Whatever you decide today, honourable senators, please consider that we are
unlikely to act with divine inherency in any bill that we pass, let alone one
that, with appendices, covers 700 pages. Legislatures constantly make amendments
to their laws, but with the Nisga'a treaty we are simultaneously doing three
things that are self-contradictory: We are attempting to make sweeping changes
to the way we govern ourselves. We are making the new regime incredibly
difficult to change. We are opening ourselves to the high likelihood of passing
an illegal document into law.
I realize I will not have persuaded all of you, or maybe any of you, today
that the treaty is unconstitutional or even unwise. However, I believe you will
all agree with me that there is a large degree of doubt about the validity of
this bill. Even if the bill were the wisest and most harmonious way to deal with
the claims of Nisga'a citizens and needs of other Canadians, we have a problem.
None of us wants to see a law of this magnitude come into force only to find out
later that it was invalid from the starting point. I therefore recommend that,
if the Senate passes the bill in spite of its flaws, you require its
implementation await the earlier of adjudication by the Supreme Court of Canada
or April 1, 2003.
I am going to switch back now from the words of Mel Smith to my own. Everyone
recognizes that you have a tough decision to make. It will take courage to make
it. Let me relate the account of an uncle of mine who also faced a tough
decision, another courageous Smith who may provide a helpful illustration. Some
of you may have heard of my uncle, who is one of two surviving Canadians who
hold the Victoria Cross, our highest award for courage in battle. According to
the book Valiant Men, on October 21, 1944, Earnest Smith, better known as
"Smokey", stood in a roadside ditch near a river in Italy. He was with
one other man, both members of the Seaforth Highlanders. Their task was to
protect the bridgehead from enemy advance. Suddenly, a Mark V tank came
lumbering down the road sweeping the area with machine gun fire and wounding
Private Smith's colleague. At a range of 30 feet, and exposed to full view of
the enemy, Smith fired his antitank gun. The bomb stopped the tank whose driver
was frantically trying to turn the tank around but could not. Immediately, 10
enemy infantrymen tumbled off the back of the tank, charging Smith with machine
gun pistols and grenades. Without hesitation, he moved into the centre of the
road, shot down four with his Tommy gun and dispersed the rest. A second tank
opened fire from a safe distance and more grenadiers came closing in on Smith.
However, the intrepid Highlander dispersed the second threat just as steadfastly
as the first. Replenishing ammunition from his wounded colleague, Smith
continued to protect him and the bridgehead with a machine gun until the enemy
gave up and withdrew in disorder. Smith and three others doggedly defended the
bridgehead position for three days until they were relieved by reinforcements.
Today, honourable senators, we are not asking to you put your life on the
line, or even to repel an enemy tank. We do implore to you consider the threat
to our Constitution and to our country. If either Smith were here today, I know
he would ask you to take a stand at the bridge.
Senator Sibbeston: Mr. Chairman, I must admit that after about 5 or 10
minutes I quit listening to the witness because, frankly, I am so insulted by
his comments and with the attitude that he presents to us. It is possible that
the Canadian Charter of Rights, technically, may not apply to the Nisga'a, but
how do you know? How can you say publicly that the Nisga'a will not conduct
themselves in such a way that they will respect the rights of people? You make
such an assumption. Nothing could be further from the truth. I find the Nisga'a
people, in my short time of knowing them, to be so patient. They have waited
over 100 years to be at this table and get themselves a land claim. You and
people like you want to tear it down. I just find what you have said so
insulting and demeaning. You are sour and bitter and negative. You portray a
picture of hopelessness --
Senator Tkachuk: A point of order.
Senator Sibbeston: They must take account for what they say. I have a right
to say what I feel.
The Chairman: Let me act as Chair and say that the point of order is well
taken. The witness has given his views and I do not think that contradiction is
Senator Sibbeston: Mr. Chairman, are you saying that as a senator I am not
able to express my feelings and views that I feel as a result of a witness who
has come here?
The Chairman: I am saying that whether you are right or wrong in what you
say, your words approach abuse of the witness. That is what I am saying.
Senator Sibbeston: He is abusing native people. He is speaking of native
people as if we were creating a Berlin Wall. How much worse could his
description of native people be?
The Chairman: Senator Sibbeston, you are out of order. I am moving to Senator
Mr. Weston: Mr. Chairman, I think this point is one that has to be addressed,
and if you do not mind, I should like to address it. I think you are absolutely
right. I think we do not know the answers to these questions. Some people think
one thing and some people think the other.
What a shame it will be if, after 100 years of negotiation, we take a law
that is invalid from the beginning, pass it into law, and then have to take it
apart slowly when we have a very speedy way to deal with that. All I am saying
is that, right or wrong, we should erase the uncertainty for the benefit of
Nisga'a people, for other aboriginals and for people from coast to coast. That
is all I am saying.
The Chairman: You have said that most eloquently tonight.
Senator St. Germain: I should like to thank the witness for coming. I would
have hoped -- I am not casting aspersions, but the chairman and I agreed not to
travel with these Senate hearings because we wanted them to be held under what
we consider a thoughtful, civil scenario. It is in that spirit that we would
like to continue with these hearings here tonight. I know that the man you speak
for has become very controversial, and it is very unfortunate that we have
turned this into a situation as opposed to a discussion over the validity of our
Constitution. Possibly it has turned into a situation of racism and the problems
in British Columbia. It is certainly not in that spirit that I want to conduct
These hearings impact on overlap, which is something that you have not spoken
about in regards to other natives. It is very important and something that will
have to be dealt with.
You are questioning the constitutional aspect of the bill, and I asked Mr.
MacDonald the same question basically. Are you of the same opinion that that
particular section that Mr. MacDonald quoted in regards to where the agreement
says that the Nisga'a must live by the rules and must live by our Constitution
and Charter of Rights is put into question by the terminology in the agreement?
Mr. Weston: There is at least a high degree of uncertainty. It is hard for me
to respond on behalf of someone like Mr. Smith, who is an eminent authority, but
I will do my best. I know if Mr. Smith were here he would say that at minimum
the issue is shrouded in uncertainty, and no one in the room can answer the
The question must go to the Supreme Court of Canada. It will go there sooner
or later. The suggestion seems eminently pragmatic that we submit to the court
an agreement that has taken so many resources and has raised expectations from
coast to coast. I cannot think of a good reason not to do so. There was such a
reference made when Mr. Trudeau sought to bring the Constitution back to Canada.
There was a reference more recently under Mr. Chrétien. There is a conservation
of resources reason to do that so that everyone can march forward on the
certainty that we have something that not only has been agreed to politically by
all the parties but has received a blessing from the supreme court of the
I think to debate the fine issue may marginally increase our understanding,
but the fact is that there is contradictory language. Even the most adamant
supporters on one side or the other must agree that there is a high level of
Senator Grafstein: This is a very attractive proposal, but it is inconsistent
with your argument. Mr. MacDonald made the same argument. He said that in this
agreement, two parliaments have abdicated their responsibilities. They have
abandoned power. Your very attractive proposal is that the Senate should abandon
its constitutional responsibilities to satisfy itself that this piece of
legislation is constitutionally appropriate. That is what I have been wrestling
with since I sat as a non-voting member of this committee: to deal with my
parliamentary responsibilities, which are to come to grips with this legislation
and decide whether or not it is constitutionally appropriate. I am not about to
abdicate my responsibility to judges, just as I would not expect judges to try
to interfere unreasonably or unduly with the parliamentary process.
Therefore, Mr. Chairman, I should like that we not deal with this proposal.
It is alluring, but get it off your desk and deal with the political issues.
Maybe the public will accept a Supreme Court decision as opposed to Parliament,
but we are here still. We are not functus officio yet. We have to deal with this
issue. I should like to come back to it if I could. With your concurrence, Mr.
Chairman, I want to ask a question or two.
The Chairman: Yes, a question or two but very pointed.
Senator Grafstein: I am trying in a way to be my own devil's advocate here.
Professor Sanders said, and we heard from a colleague who made the same argument
in a different way, that the rights of aboriginals predated the Constitution of
1867. There are inherent, pre-existing rights. The royal prerogative was not
pre-empted, but was diluted somewhat by the pre-existing agreements, the Quebec
Act, the earlier acts. We have heard it all. The evidence is there.
We must to look at this set of rights under section 35 and section 25 and see
whether or not we can round the circle, which is inherent rights, pre-existing,
pre-royal prerogative and still be consistent with the Constitution. There is a
huge conundrum in the Constitution dealing with section 25 and section 35
because they said aboriginal rights are yet to be defined. We have two
democratic legislatures -- the legislature of the Province of British Columbia
and the other chamber -- who have concluded that these are aboriginal rights
that should be encapsulated in this very complex arrangement. I take it for
myself that this does not necessarily mean that all of these other negotiations
will take the same route. It may very well be that this will be tested in the
courts, and then different conclusions may arise.
How do you deal with the fundamental issue that my colleague put that this is
a pre-existing, pre-1867 inherent right and that section 35 and section 25 only
give some flesh to this as best they can with this imperfect arrangement under
the Charter? How do we deal with that? He has made his argument, but how do we
respond to that?
The Chairman: The witness will try to answer the question.
Mr. Weston: I read a transcript yesterday of testimony given by the same
Professor Sanders and Melvin Smith together in November 1999 at the Empress
Hotel in Victoria. It is unfortunate that they are not both in the room. They
could agree that these issues have not been tested by the courts. First, there
has never been something like this before, so we are dealing with a new animal.
Second, there is therefore a high degree of uncertainty involved.
Professor Sanders says that there is a theory of law and government that
predates our Constitution and therefore there are really three parties to the
Constitution, something we had not considered before, at least before section 35
came into our Constitution. That is arguable. The problem is that we have two
possible avenues. One avenue is that we can get our opinion from the court,
which will ultimately decide this now, or we pass it. We have heard from Mr.
MacDonald how difficult it will be to make references to the Supreme Court
afterwards, because the federal government and the provincial government have
somehow fettered their own ability to support a challenge. That means that Joe
citizen has to be able to afford the challenge to get up to the Supreme Court of
Canada on a section by section challenge rather than getting the whole bill put
before the Supreme Court of Canada for consideration of these very weighty,
profound issues that will affect our great, great grandchildren.
Senator Grafstein: Is it fair to say that you and Mr. MacDonald would be
satisfied if there were an amendment that, in effect, said that the federal and
provincial governments had not fettered their discretion by this agreement and
that the division of powers is sacrosanct? Would another alternative be to
follow the American experience that allows self-government, allows a model of
policing and allows a model of court adjudication and yet keeps Congress free,
at any time, politically if it chooses to do so, to intervene? Is that a
suitable alternative for us?
Mr. Weston: Could you restate the question?
The Chairman: Actually, I should like to turn to Senator Andreychuk because
the question asks for an opinion, but the witness is not an expert on American
aboriginal law, unless he tells us he wants to be considered so.
Mr. Weston: I will be glad to duck that one.
Senator Andreychuk: First, I want to apologize for the way that this hearing
has been conducted in your presence and I thank the Chair for intervening at the
appropriate time. Since I started to study this, I have been impressed that the
Nisga'a people are well and capable and have done an excellent job of putting
forward their position and negotiating for themselves. They do not need the
protections that appeared to be coming forward in this committee. I believe that
the Nisga'a have negotiated in good faith with both the federal and the
provincial governments, and I think that your comments and Mr. Smith's comments
have been raised in good faith. Would it allay your fears if all three parties
issued a joint undertaking by letter or otherwise, because we have gone so far
down on the agreement, to state exactly what your concern is? Such a letter
would indicate that they do not intend to violate the Charter of Rights and
Freedoms and that they intend to be subject to it. Would that go a long way to
allay your fears? What other legal point would you cover in such an undertaking?
Mr. Weston: I became interested in this when I returned two years ago from
Asia, where I had spent many years. I now have two children, aged one and two.
As I started to read the newspaper clippings of what was happening, I asked
myself what would happen if these provisions were in place when my grandchildren
are alive and when their grandchildren are. We are amending a document that is
meant to be the basic law that will govern not only ourselves but people who
come many years after us. It will also be a blueprint for other treaties that
are entered into in British Columbia and perhaps treaties from coast to coast
that are renegotiated in the years to come.
It is not the individuals who are at the table that concern me. We hear
nothing but good reports about the good faith of the Nisga'a people. That is not
an issue on the table. If anything, we can say they have inspired Canadians to
be more patriotic by their following of the rule of law and their sincere
efforts to make this a better place. I think everyone applauds that.
The issue is that we are changing a Constitution and it is our governing law.
We cannot tell what the people will be like who come after us, those who have to
operate under the governing law. That is why people who are thinking not six
months ahead but 60 years or 600 hundred years ahead really want to make sure
that we set out on the right foot.
Senator Andreychuk: If this went to the Supreme Court and they upheld this
agreement, would you be satisfied and prepared to live positively with this
Mr. Weston: I would be much happier, because I would know that at least we
had been given instructions from the highest court of the land and we would know
the playing field upon which we are all to play. Whether we were foreign
investors thinking about coming to do business here or simply citizens of
Canada, we would know that this was how we were to proceed. The rest of the 50
agreements could be much more clearly negotiated.
The Chairman: Thank you, Mr. Weston. You have performed under difficult
circumstances; it is always difficult to present someone else's brief and
someone else's arguments. I am sure you know Mr. Smith's mind quite well and we
thank you for appearing.
I should like to call on Mr. Bell-Irving, who is a native of British
Columbia, if I can use that phrase, and has spent his business career there.
Senator Grafstein will want you to give some additional details of yourself, Mr.
Mr. Harry Bell-Irving, Director, Citizen's Voice on Native Claims: Honourable
senators, I am a native of British Columbia. I was born there, as were my
parents and one of my four grandparents. I have practised law in Vancouver for
over 50 years, but I have not ever worked in the constitutional field. I do not,
therefore, make any claim to be a constitutional lawyer. Notwithstanding that, I
will make statements in my paper relating to constitutional matters, because I
have a legal background and I think the constitutional matters before us today
are very important.
I concur with what Mr. MacDonald said and I also concur with Mr. Smith's
remarks. I will try to deal quickly with the parts of my paper that duplicate
what they said, and I should like you to know that, in the preparation of my
paper, I did not know what either of those men would be saying. What I say in my
paper is entirely my own.
I do appear as a director of Citizen's Voice on Native Claims, a federally
incorporated company that came into existence shortly after the Nisga'a
Agreement-in-Principle was tabled. Its prime purpose was to disseminate
information to British Columbians and, to a degree, to all Canadians. We were,
however, primarily interested in informing British Columbians on the treaty in
an attempt to improve it. I acknowledge that we, as a group, were unanimously
gravely concerned about many aspects of the treaty.
Bill C-9, to give effect to the Nisga'a Final Agreement, is, I believe, with
the possible exception of the declaration of war in 1939, the most important
legislation to come before the Senate in my lifetime. If enacted in its present
form, the Nisga'a agreement will have a profound effect on every Canadian living
in British Columbia. It will also have a profound effect on all Canadians,
because aboriginals throughout Canada will seek to get as good or better a
position for their band as is granted to the Nisga'a, particularly with respect
to the rights of self-government.
While I have serious concerns regarding numerous important provisions of the
Nisga'a agreement, I will in this presentation limit my comments to two matters:
to chapter 11 of the Nisga'a agreement, which sets out the self-government
rights, and to the manner in which the Nisga'a agreement has been negotiated and
the conduct of the British Columbia and federal governments in passing or
seeking to pass the agreement into law.
I heard Mr. MacDonald say that he would probably not be here if not for
chapter 11. I am in the same position. That is the part of the agreement that
causes me concern.
The Nisga'a have been given provincial- and federal-like powers to govern in
a great many areas of law. In 14 different instances, chapter 11 of the Nisga'a
agreement provides that in the event of an inconsistency or conflict between the
Nisga'a law and a federal or provincial law, the Nisga'a law will prevail to the
extent of the inconsistency or conflict.
To this point in our history, all legislative powers have rested exclusively
in one or other of the federal government or the provincial governments. Under
the Nisga'a agreement, in certain instances paramount powers will reside in a
new third order of government: the Nisga'a government. How can the federal
government continue to say it is sovereign? What will happen when 60 or more
other aboriginal bands in British Columbia have been granted the paramount
powers granted to the Nisga'a? What will the federal government say to
aboriginal bands across Canada when they demand the same rights of
self-government for themselves?
Chapter 11 of the Nisga'a Final Agreement provides for a Nisga'a constitution
and Nisga'a citizenship and that only Nisga'a citizens can vote for the Nisga'a
agreement. This clearly establishes a right to vote based on race. How can this
racially based right to vote or, put the other way, the denial of the right to
vote because you do not belong to the right race, be reconciled with the concept
that all Canadians are equal? Is British Columbia to be balkanized so that there
will be 60 or more areas within the province, some of them possibly many
thousands of square miles, where 99.9 per cent of the people living in British
Columbia cannot vote? Will this balkanization spread across Canada?
Paragraph 30 of chapter 11 of the Nisga'a agreement provides that in certain
circumstances British Columbia will consult with the Nisga'a government before
amending provincial laws. For practical purposes, that provision constitutes a
further derogation of the powers of the British Columbia government and, if
nothing else, will result in substantial additional bureaucracy at the
provincial level and in delays in the enactment of provincial laws governing
Considering that there may well be 60 or more agreements with other
aboriginal bands in British Columbia, will it be possible for the British
Columbia government to continue to operate effectively and on a timely basis?
The Nisga'a agreement is in part in settlement of land claims and,
accordingly, will be entrenched as part of the Constitution of Canada and,
therefore, can only be amended pursuant to the constitutional process. The
agreement provides that there can be no amendment without the consent of the
Nisga'a. Accordingly, the Nisga'a could defy the wishes of the rest of Canada.
Surely that is a significant derogation of the sovereignty of Canada and does
not make sense.
In any event, it is only common sense to have an initial trial period of
perhaps 10 years, giving Canada and British Columbia the power to make
amendments where needed. That can be accomplished by moving the self-government
rights to a separate agreement as has been the case in every treaty entered into
by the Government of Canada to date.
Senator Joan Fraser, in a recent article published in the National Post,
noted that last year the Senate proposed 55 amendments to Commons bills and also
noted that it was The Financial Post that said, in 1998, that in recent years,
the upper chamber has done a better job than opposition parties in improving
legislation. Its committees, where the real work is done, have for years made a
valuable contribution to the shaping of federal public policy. What better place
to protect the interests and rights of citizens of Canada with respect to Bill
Keeping in mind the speeches made before the Senate by the Honourable Senator
Austin and Minister Nault, I think it important that this committee hear from
representatives of the majority of British Columbians. The polls have shown that
the majority of British Columbians do not approve the Nisga'a agreement in its
present form. The polls also show that the majority of British Columbians do
approve of entering into treaties and being generous. I include myself in that
majority, as I think did Alex MacDonald.
It is my understanding that prior to the introduction of the Nisga'a
Agreement-in-Principle, the governments of Canada and British Columbia took the
position that there would be no settlement of land claims until overlapping
claims of adjoining aboriginal bands were solved. When or why this fell off the
table I do not know, but it was an important and sensible position and its
abandonment will come back to haunt us. I mention this because it has direct
application to the Nisga'a, as I will note later in my submission.
The following is a summary of the atmosphere in British Columbia in which the
Nisga'a agreement has been negotiated and passed through the British Columbia
legislature and the House of Commons. In February 1996, the Nisga'a
Agreement-in-Principle was signed and made available to the public. That was the
first opportunity the people of British Columbia had to see the agreement, even
though the negotiations had been going on for years. Regrettably, the
negotiations had always been in secret and, also regrettably, the people of
British Columbia had never been consulted on what should be in the agreement. In
the period immediately following this signing, spokesmen on behalf of the
federal government, the British Columbia government and the Nisga'a Tribal
Council made it clear that there was very little room for change.
When concerned British Columbians requested a referendum to approve the
agreement, the premier said no. When it was pointed out that there had been no
consultation by the B.C. government with the people of British Columbia on what
the people considered fair or, more important, on what British Columbians
considered reasonable parameters for settling aboriginal claims generally, it
was brushed aside as being unnecessary.
When it was pointed out to the premier that the Nisga'a would have to have a
vote, their referendum to approve the agreement, and when the people of British
Columbia pressed for their vote or referendum, the premier again said no; he
said that it was too complicated for a referendum. When it was pointed out that
the Constitutional Amendment Act of British Columbia provides that the
government must not introduce a motion for a resolution of the legislative
assembly authorizing an amendment to the Constitution of Canada unless a
referendum had first been conducted under the Referendum Act with respect to the
subject matter of that resolution, the premier said that the Nisga'a agreement
did not amount to an amendment to the Constitution of Canada so there was no
need for a referendum.
The three parties to the agreement continued to negotiate from February 1996
until August 1998 when the Nisga'a agreement in final form was initialled by the
parties. Those negotiations were conducted in secret and the people of British
Columbia were, for all practical purposes, excluded. There was a commitment by
the B.C. government to release the agreement chapter by chapter as the chapters
were finalized, but that did not happen, except with a few chapters at the very
end. In answer to the pleadings of various organizations, including the official
opposition in the legislature, the premier promised to release the chapter on
Nisga'a government in advance of tabling the final agreement in the legislature.
Of course, the premier did not keep that promise. In the British Columbia
legislature, it was made clear by the NDP that no amendment would be permitted
and, indeed, a form of closure was introduced to cut off debate.
Throughout the whole period, the federal and B.C. governments continued to
misrepresent the agreement in a number of material aspects, the two most
important misrepresentations being that the self-government powers granted to
the Nisga'a were similar to local or municipal powers and that the agreement
would create certainty.
The Prime Minister was asked to permit a free vote in the House of Commons on
the Nisga'a agreement but refused, saying it is too important a matter for a
free vote. Is it too cynical to ask the question: Are we to be grateful to the
Prime Minister for saving us from the Liberal caucus, who apparently cannot be
trusted to vote the right way?
In his presentation to this committee on February 16, 2000, Minister Nault
If I have one overwhelming concern about the public debate on the treaty to
date, it is the amount of misinformation that exists. As you well know, the
treaty arrangements are complex and, unfortunately, some critics have
deliberately misrepresented the facts when discussing its implications.
I should like to challenge the word "deliberately". I have been
accused in my work in British Columbia of misrepresenting and being a
scaremonger. If I did misrepresent, it was not intentional, and it was certainly
not deliberate. If I did, it was only because, after very careful work, I had
apparently made a mistake. I have never had any representation in the writings
of our organization or any statement that I have made corrected.
Minister Nault, in his submission to this committee, said this treaty
...ensures the application of all federal and provincial laws within the
Considering that the Nisga'a agreement grants paramountcy to the Nisga'a
government in 14 different areas of law-making, how can the minister make this
extraordinary statement? Surely the Nisga'a agreement ensures that, in many
important instances, federal and provincial laws need not apply. Does the
minister really believe what he said? Is his statement misleading? I think it is
Minister Nault, in his submission to the committee, said:
This agreement, and its self-government provisions, were designed to meet the
needs of those whom it may affect. The great majority of Nisga'a law-making
powers will affect only the Nisga'a themselves, or their lands, assets,
language, and culture.
Then the key words:
This is self-government and an appropriate form of local government.
To my knowledge, 100 per cent of the law-making powers of local government in
Canada are delegated from either the Government of Canada or a provincial
government, which means that the powers of the local government can be amended
or even withdrawn. That is not the case with many important powers granted to
the Nisga'a government. No local government anywhere in Canada has a
constitution that entitles it to confer citizenship on the basis of
qualifications of its choosing and to restrict the right to vote to those who
meet such qualifications. No local government anywhere in Canada has direct free
access to significant natural resources. Does the minister really think that the
Nisga'a government is fairly described as "local government"? Is his
statement misleading? I think it is misleading.
Tom Molloy, the chief federal negotiator, says that the Nisga'a agreement has
been negotiated in good faith and that it is too late to try to change it now.
The Department of Indian and Northern Affairs, which negotiated for the federal
government, is in a fiduciary position with respect to aboriginals and
accordingly is in a position of conflict of interest with respect to what I
sometimes refer to as the 95 per cent minority -- that is, the 95 per cent of
Canadians who are not aboriginals. I submit that in the practical, common-sense
application of the word "represent", no one has represented Canadians
as a whole and that it is misleading to say the agreement was negotiated in good
Since I am speaking in Ontario, it seems fair to ask: Is the Government of
Ontario prepared to cede to aboriginal bands in Ontario powers of
self-government like those granted to the Nisga'a? Have the people of Ontario
been kept informed, let alone consulted? The same questions must, of course, be
asked with respect to all provinces. To my knowledge, neither Ontario nor any
other province has been consulted. Have they been dealt with in good faith? I
Both Senator Austin and Minister Nault unequivocally state that the Nisga'a
agreement does not amend the Constitution of Canada. Senator Austin quotes
evidence given by Professor Monahan. The Monahan opinion is that the Nisga'a
agreement does not amount to an amendment to the Constitution of Canada and,
furthermore, that if the federal government in the future entered into
agreements with aboriginals it could cede paramountcy to aboriginals of other
powers without that amounting to an amendment to the Constitution of Canada. It
seems to me that the logical extension of the Monahan opinion is that the
Government of Canada could gradually cede to aboriginals all of its powers
without that amounting to an amendment of the Constitution of Canada.
Highly regarded constitutional experts, notably Melvin H. Smith of British
Columbia, but certainly there are others, have expressed the opinion that parts
of the Nisga'a agreement do amount to an amendment to the Constitution of
Canada. Is it possible that you can add a 252-page agreement, together with
hundreds of pages of appendices, to the Constitution of Canada but not have that
amount to an amendment to the Constitution? Is it misleading to omit reference
to serious doubts that have been raised as to the constitutionality of this
agreement? I think the answer is yes.
The supporters of the Nisga'a agreement say that it is democratic, but 99 per
cent of Canadians, including aboriginals who are not Nisga'a, will not be able
to vote for the Nisga'a government. How can the Nisga'a government be described
as democratic? Is it misleading to state that the Nisga'a agreement is
democratic? Surely the answer is yes.
The supporters of the Nisga'a agreement say that the Charter of Rights will
apply to the Nisga'a agreement but are silent on the fact that constitutional
scholars are divided on that point.
I will not read further, because I assume it will be in the record. Am I
correct, Mr. Chairman?
The Chairman: Your entire paper will be in the record.
Mr. Bell-Irving: I will not read further on the question of the application
of the Charter because my points are similar to the points made by previous
The supporters of the Nisga'a agreement say it will create certainty, but
there are many sub-agreements yet to be settled in final form and made public,
so how do they know? There are at least four lawsuits presently outstanding
questioning the constitutionality and other important aspects of the Nisga'a
agreement. One of those lawsuits is by the British Columbia Liberal Party, the
official opposition in the British Columbia legislature, which received more
votes in the last election than the governing NDP. Another is by a neighbouring
aboriginal band that claims that much of the land that is given to the Nisga'a
is their land and not Nisga'a land. Can anyone seriously doubt that the Nisga'a
agreement will be before the courts for decades to come? How can the claim of
certainty be made? Is it misleading to make the claim of certainty? Surely the
answer is yes.
Why have the federal and the B.C. governments negotiated in secret, denied
the Nisga'a agreement will create a new third order of government, denied that
any part of it amounts to an amendment to the Constitution of Canada, denied
British Columbians any meaningful say in the terms of the agreement, permitted
the Nisga'a referendum on the agreement but denied British Columbians an
opportunity to approve the agreement by referendum, and rushed and bullied the
agreement through the legislature in British Columbia and the House of Commons
using closure tactics? I submit that the answer is because they know that a
clear majority of British Columbians, and, having in mind the Charlottetown
accord, the majority of Canadians, do not approve the present agreement in its
present form and on a referendum would vote it down. Is it too cynical to
suggest that I can imagine the Prime Minister saying, "Heaven forbid that
the will of Canadians prevail and that we have another result like the
To sum up, the supporters claim that the Nisga'a agreement is democratic, but
I cannot vote; that the Nisga'a agreement does not create a third order of
government and that the powers granted to the Nisga'a amount only to appropriate
local government, but Nisga'a laws will have supremacy over the laws of the
Government of Canada and British Columbia in at least 14 instances; that the
Nisga'a agreement does not amount to an amendment to the Constitution of Canada,
but they acknowledge that it will form part of the Constitution of Canada; that
the Nisga'a agreement will create certainty, but, in fact, the only certainty is
that there will be the uncertainty of ongoing disputes in the courts
indefinitely into the future.
Canadians have a term for this sort of nonsense. We call it a snow job. This
snow job has the proportions of a major blizzard. Canadians know that to be
caught out in a blizzard can be fatal. The name of the party caught in this
blizzard is Canada.
If the Nisga'a agreement in its present form is approved in the Senate and
becomes law, the sovereignty of Canada will be significantly diminished. I
believe it will be the first step in the breakup of Canada. I also believe that,
if the Nisga'a agreement is to be the template for many agreements with
aboriginals to follow in British Columbia, then British Columbia will be lost to
Canada as an effectively governable and economic province.
I urge the Senate to put the Nisga'a agreement on hold until the
constitutional questions have been considered by the courts. Failing that, and
at the very least, I urge the Senate to recommend an amendment that would have
the effect of removing chapter 11, dealing with self-government, from the
Nisga'a agreement and placing it in a separate agreement, thus giving a
reasonable time to experience the Nisga'a government in operation. If experience
showed that the self-government rights needed amendment, it would be a simple
matter to make amendments, and the self-government rights as amended could be
written into the Constitution of Canada if it was thought wise at that time.
Senator Beaudoin: Mr. Bell-Irving, you say in the brief that our chairman and
the minister state unequivocally that the Nisga'a agreement does not amend the
Constitution of Canada.
Mr. Bell-Irving: That is correct.
Senator Beaudoin: It is a simple statute -- very important, of course, but a
statute. If that is so, how can we reconcile that with the fact that in 14 areas
or 20 areas, the rule of paramountcy is not federal or provincial, the
paramountcy is Nisga'a? If that is so, it means that we have the equivalent of a
third order of government.
We know that the Supreme Court right now, tonight, at least, has not said
that there is a third order of government. We know that some jurists are
disagreeing on this. Some say it is inherent in clause 35, and others say no.
However, as I said, I have not yet seen any judgment of the Supreme Court saying
that we now have a third order of government.
If all this is true, you conclude that the bill is unconstitutional, at least
in respect of the paramountcy. Is that what you say?
Mr. Bell-Irving: That is right.
Senator Beaudoin: In those 14 areas?
Mr. Bell-Irving: At least, in respect of that. However, there are other
matters in the agreement that I say are unconstitutional.
Senator Beaudoin: Perhaps, but that one is very different from all the
others, the paramountcy rule, because this is the first time we have in a
statute a paramountcy that is neither federal nor provincial. In the
Constitution, so far we have only federal paramountcy in section 95 and
provincial paramountcy in section 94.
In view of that, you say that we should ask the Supreme Court to rule on it.
The bill is before the Senate. The only authority that may go before the court
at this stage is the Government of Canada, the Governor in Council. Obviously,
as far as I can see, they are not interested at all in going to the Supreme
Court. The bill may be challenged once it is adopted, when it is enacted. We
must decide, as my colleague has said. The courts are there but we are here. We
are the legislative branch of the state and we must take our responsibility.
What you are requesting is a vote not against the bill, but a vote against
that disposition that deals with 14 areas where paramountcy is not federal or
provincial. Is that what you are suggesting?
Mr. Bell-Irving: First, it is my understanding that the court would not deal
with the matter of constitutionality until either the bill becomes law or there
is a reference to the court. My suggestion is that there should be a reference
to the court, but the questions of constitutionality would not be limited merely
to the 14 instances where paramountcy is given in the self-government chapters.
Other presenters this evening have dealt with very important aspects of
potential unconstitutionality and, therefore, invalidity. As I see it, the
position that they took, and certainly that I take, is this: Why try to make law
something that may not be constitutional? Why not take a reference?
As to the honourable senator on the right, I agree with the other presenters
this evening. If the Supreme Court of Canada states that the bill is
constitutional, then, while that would surprise me and would not please me, I
would accept it. That is the law of the land. That is what, in part, the last
half my paper is really directed to. I believe the democratic process has been
seriously abused in this matter.
Senator Beaudoin: We will have the opportunity tonight and tomorrow to ask
two other experts on the Constitution to comment on this question.
Mr. Bell-Irving: I am sure they will know more than I.
The Chairman: Thank you, Mr. Bell-Irving, for your appearance. Obviously, as
you have said, you have buttressed and reinforced the evidence given by Mr.
MacDonald and Mr. Weston on behalf of Mr. Smith. It is very much in the same
direction. We thank you for your presentation.
I will now call Professor Bruce Ryder and Professor Kent McNeil of Osgoode
Hall to come forward. Professor Ryder, please proceed.
Professor Bruce Ryder, Osgoode Hall Law School: Mr. Chairman, it is an honour
and a privilege to be part of the Senate's close study of Bill C-9 and the
Nisga'a Final Agreement. I thank you for giving me the opportunity to
participate in your considerations. I have been teaching, researching and
publishing in the area of constitutional law since my appointment to Osgoode
Hall Law School in 1987, and I hope I can be of some modest assistance to
senators in trying to sort through some of the constitutional issues that have
been raised in these hearings.
As you know, the Nisga'a Final Agreement is the culmination of a lengthy
process aimed at reconciling the Nisga'a's prior sovereignty and prior
occupation of their land with the subsequent assertion of Crown sovereignty. Its
provisions, in my view, accomplish this goal in an honourable and just fashion.
Moreover, the NFA is consistent with, and indeed advances, the foundational
principles of the Canadian Constitution: federalism, democracy, the rule of law,
and the protection of minority rights.
Therefore, in my view, rather than being an occasion to dwell in
constitutional doubt, I see the NFA as an occasion to celebrate the realization
of our historic commitments and our contemporary constitutional aspirations.
In my comments, I should like to focus on two constitutional issues that have
been raised before the committee. I would speak to the constitutional status of
the Nisga'a Final Agreement and the issue of whether it amounts to an amendment
to the Constitution. I would also speak to the application of the Charter and
the related issue of the protection of minority rights provided for by the
As you know, the Nisga'a Final Agreement is a treaty and a land claims
agreement for the purposes of section 35 of the Constitution Act, 1982.
Therefore, if the ratification process is completed by the passage of Bill C-9,
the provisions of the NFA will be constitutionally protected. In the words of
section 35(1) of the Constitution Act, 1982, the provisions of the treaty will
become "recognized and affirmed." Any government action that is
inconsistent with the provisions of the treaty may be declared of no force and
effect, pursuant to section 52 of the Constitution Act, 1982.
It has been suggested that the entrenchment of Nisga'a government powers
through the treaty process amounts to an amendment to the Canadian Constitution
that can be accomplished only by following the amending procedures set out in
Part V of the Constitution Act, 1982. This view, in my respectful submission, is
Our Constitution, as amended in 1982 and 1983, expressly contemplates the
entrenchment of rights through the negotiation of land claims agreements. In
other words, the protection of existing treaty rights in section 35(1) is not
limited to treaties that were already in existence in 1982. It also embraces
treaty rights that have come, or may come, into existence after 1982. Given that
the Canadian government has been committed since the mid-1970s to resolving
outstanding land claims through the treaty process, it would have made no sense
to limit section 35 to historical treaties.
To make this interpretation abundantly clear, section 35 of the Constitution
Act, 1982 was amended in 1983. The amendments reflected the agreements reached
in the constitutional accord on aboriginal rights signed on March 16, 1983 by
representatives of four national aboriginal organizations, by the Government of
Canada, by nine provincial governments and two territorial governments. One of
the amendments added a new provision, section 35(3), which provides that:
For greater certainty, in subsection (1) "treaty rights" includes
rights that now exist by way of land claims agreements or may be so acquired.
If ratified, the Nisga'a Final Agreement will embody treaty rights that have
been acquired by way of land claims agreement in accordance with section 35(3).
The Nisga'a rights of self-government, rather than amounting to a constitutional
amendment, have been acquired according to the very process contemplated by the
constitutional amendments ratified by Canadian governments and representatives
of aboriginal peoples in 1982 and 1983.
It is true that the provisions of the NFA will have the effect of altering
the degree to which federal and provincial laws will apply to Nisga'a lands and
Nisga'a citizens. This is true of all constitutionally entrenched rights and
freedoms. They have the effect of limiting the operation of federal and
provincial laws to the extent necessary to protect those rights and freedoms.
One feature of the entrenchment of treaty rights in section 35(1) is that the
impact of this provision on federal and provincial powers will change over time
as new treaties are negotiated and ratified. The same could be said, for
example, of the impact of the minority language education rights in section 23
of the Charter of Rights and Freedoms. The impact of this provision on
provincial jurisdiction to pass laws in relation to education will change over
time since the right to have separate educational facilities in section 23
exists only where the number of children so warrants. Nobody would suggest that
the Constitution has been amended when the number of children in a particular
locale reaches that threshold. Nor is the Constitution amended when new treaty
rights are entrenched in section 35(1).
The NFA does not amend the division of powers between the federal and
provincial governments set out in the Constitution Act, 1867. The federal and
British Columbia governments' jurisdiction to make laws in relation to subject
matters listed in sections 91 and 92 of the 1867 act are not affected. The NFA
explicitly provides that this agreement does not alter the Constitution of
Canada, including the distribution of powers between Canada and B.C.
As I mentioned, the provisions of the NFA will alter, compared to the current
situation, the degree to which validly enacted federal and provincial laws can
apply to Nisga'a lands and Nisga'a citizens. The application of the Indian Act,
including the tax exemption set out in section 87, will be phased out. B.C.
legislation dealing with the division of matrimonial property, which currently
is inapplicable to immovable property on Indian reserves, will now apply to
Nisga'a lands and Nisga'a citizens. The federal and British Columbia governments
will continue to have jurisdiction to pass laws within the respective spheres of
constitutional jurisdiction. Subject to the terms of the treaty, validly enacted
federal and provincial laws will continue to apply to Nisga'a lands and Nisga'a
citizens. The Nisga'a government will have no exclusive law-making powers.
Rather, it will have concurrent or shared jurisdiction with the federal and
British Columbia governments to pass laws in the range of subject matters
stipulated by the NFA. With respect to some subject matters of primarily local
or internal concern, such as Nisga'a government, citizenship, culture and
language, and property, federal and B.C. laws will be rendered inoperative to
the extent that they conflict with Nisga'a law.
If ratified, the NFA defines and gives explicit constitutional protection to
Nisga'a rights of self-government. It is inaccurate, however, to describe the
agreement as creating a new constitutional order of government. My colleagues at
Osgoode Hall Law School, Dean Peter Hogg and Professor Patrick Monahan, in their
presentations before the House of Commons Standing Committee on Aboriginal
Affairs and Northern Development on November 23, 1999, took the view that there
is very little doubt that the Supreme Court of Canada will recognize that
aboriginal self-government is already protected by section 35(1) of the
Constitution Act, 1982. I share this view.
Although the Supreme Court, as has been mentioned in these hearings, has not
yet authoritatively decided the question, the statements it has made in its
rulings on the meaning of aboriginal rights recognized and affirmed by section
35(1) point very clearly in this direction.
The court has stated that aboriginal rights include any practices, customs or
traditions integral to the distinctive culture of an aboriginal nation at the
time of contact with European settlers that have not since been fully
extinguished by the clear and plain intention of the Crown. Since aboriginal
nations constituted organized societies with their own traditions of governance
at the time of contact with European settlers, and since the Crown has not
demonstrated a clear and plain intention to completely extinguish those
traditions of governance, rights of self-government are existing aboriginal
rights for the purposes of section 35(1).
The court has held, in the Delgamuukw case, that unextinguished aboriginal
title is protected by section 35(1) and is composed of a right to the exclusive
use and occupation of land. The right is held communally by all members of an
aboriginal nation and, as the court stated in Delgamuukw, "decisions with
respect to that land are also made by that community." In other words,
implicit within the court's definition of aboriginal title appears to be a right
of collective governance -- that is a right of self-government -- with respect
to the use and occupation of lands subject to unextinguished aboriginal title.
Senators may know that the Supreme Court of Canada has twice had the
opportunity to issue an authoritative ruling on whether rights of
self-government are already protected by section 35(1). In its decisions in
Pamajewon and Delgamuukw, it expressly declined to do so on the grounds that the
claims were framed in excessively general terms.
As a result, the court said that it was beyond its institutional competence
to address all of the complex issues raised by such general claims. Instead, the
Supreme Court of Canada and other courts have repeatedly indicated that these
issues are best addressed comprehensively through treaty negotiations. The only
other option is to have specific aspects of an aboriginal nation's rights of
self-government addressed piecemeal by the courts in litigation.
It is clear that the Nisga'a nation and the governments of Canada and British
Columbia have made the right choice in reaching agreement on the NFA. It does
not create a new order of constitutional government; rather, it transforms the
uncertain content of Nisga'a rights of self-government, already included within
section 35(1)'s protection of aboriginal rights, and transforms them into treaty
rights that have been defined in an explicit and detailed manner through the
consent of the parties.
I should like to take a few moments, Mr. Chairman, to address the Charter
issue. As you know, the treaty expressly provides, in paragraph 9 of chapter 2,
The Canadian Charter of Rights and Freedoms applies to Nisga'a Government in
respect of all matters within its authority, bearing in mind the free and
democratic nature of Nisga'a Government as set out in this Agreement.
In other words, the treaty, by reference, incorporates the body of Charter
law into the treaty and makes it applicable to the exercise of Nisga'a
governmental authority. The reference to the free and democratic nature of
Nisga'a government ensures that Charter rights and freedoms are guaranteed in
the same way and to the same extent as they are guaranteed to Canadians by
section 1 of the Charter in our relationships with federal and provincial
governments. It means, for example, that the burden is placed on the Nisga'a
government to demonstrably justify any violation of Charter rights or freedoms
pursuant to section 1 of the Charter.
It has been suggested by some that the provision of the NFA that provides for
the application of the Charter, which seems clear enough on its face, is
rendered ineffective or illusory by section 25 of the Charter, which provides
The guarantee in this Charter of certain rights and freedoms shall not be
construed so as to abrogate or derogate from any aboriginal, treaty or other
rights or freedoms that pertain to the aboriginal peoples of Canada...
The argument that some have made is that paragraph 9 of chapter 2, despite
its apparent clarity on this issue, will not be effective in making the Charter
applicable to Nisga'a government because the Charter cannot be construed in a
manner that will derogate from the powers of Nisga'a government set out in the
With all due respect, this argument is legally unsound. It is true that the
Charter cannot be construed in a manner that will derogate from the treaty
rights set out in the NFA. Thus, for example, section 25 means that the Canadian
courts will not declare invalid the treaty provisions conferring law-making
powers on the Nisga'a government on the grounds that they discriminate on the
basis of national or ethnic origin contrary to section 15 of the Charter,
because to accept such an argument would derogate from the treaty rights given
to the Nisga'a people, contrary to section 25.
However, section 25 does not prevent the Charter from being applied to the
exercise of Nisga'a government authority pursuant to the rights set out in the
treaty. That is because the treaty rights themselves are defined as the power to
exercise Nisga'a governmental authority in a manner consistent with the Charter.
It is nonsense, therefore, to say that applying the Charter to the exercise of
Nisga'a governmental authority, which pursuant to the treaty must be exercised
in conformity with the Charter, amounts to a derogation from the rights set out
in the NFA. Rather, this is precisely what the treaty expressly contemplates.
Given, in my view, that paragraph 9 of chapter 2 makes it perfectly clear
that the Charter applies to the exercise of Nisga'a governmental authority, the
basic human rights and freedoms of all persons are protected by the treaty. Let
me address specifically the situation of non-Nisga'a residents on non-Nisga'a
lands, which has been raised before the committee.
The NFA provides that all Nisga'a citizens are eligible to vote in Nisga'a
elections and to hold office in Nisga'a government. Nisga'a government will be
democratically accountable and elections will be held at least every five years.
Elections will be held in accordance with the Nisga'a constitution and Nisga'a
laws. The treaty does not explicitly confer a right to vote or a right to hold
elected office on non-Nisga'a residents. That is perfectly appropriate, in my
view, given the complex mix of governmental powers set out in the treaty. Some
of these powers operate on a personal as opposed to a territorial basis -- that
is, they apply only to Nisga'a citizens -- and some are in relation to matters
of purely internal concern.
The interests of non-Nisga'a residents are not affected by the exercise of
these laws; therefore, it would be inappropriate to guarantee them a right to
vote with respect to all matters of concern to Nisga'a government. At the same
time, it is important to emphasize, however, that there is no provision of the
treaty, contrary to some suggestions that have been made, that prevents the
Nisga'a government from extending the right to vote or the right to hold
political office to non-Nisga'a residents.
Paragraphs 19 through 23 of chapter 11 confer certain rights on non-Nisga'a
residents, including a right to be consulted on Nisga'a government decisions
that directly and significantly affect them, and a right to participate in
Nisga'a public institutions where the activities of those institutions directly
and significantly affect them. There is nothing in the treaty to prevent Nisga'a
government from passing laws that accord greater rights of political
participation to non-Nisga'a residents and, indeed, they may well be required to
do so by the Charter of Rights and Freedoms.
Recent decisions of the courts dealing with political rights in relation to
the operations of band governments under the Indian Act have made it abundantly
clear that the courts will use section 15 of the Charter to protect the rights
of minorities or vulnerable groups within aboriginal communities. Members of the
committee who are not familiar with the recent decision of the Supreme Court of
Canada in the Corbiere case will find it instructive reading on this issue. The
same will be true here; that is, the courts will interpret the Charter and apply
the Charter to the exercise of Nisga'a governmental authority in a way that
protects the rights of minorities or vulnerable groups.
Therefore, the concerns that have been raised about minority rights should
not lead us to reject the treaty, since the treaty itself contains no provisions
that prevent Nisga'a government from taking steps to provide appropriate rights
of political participation to non-Nisga'a residents. The treaty gives Nisga'a
government the flexibility to devise appropriate solutions tailored to the
complex nature of their jurisdiction.
Ultimately, my conclusion on the Charter issue is that it will be the courts
who decide whether Nisga'a government powers have been exercised in a manner
that provides adequate protection to non-Nisga'a residents rights of political
Professor Kent McNeil, Osgoode Hall Law School: Honourable senators, I have
been teaching at Osgoode Hall Law School since 1987. I specialize in the area of
aboriginal rights. I teach in that area and practically all my research and
writing is in the area of aboriginal rights, including land claims and
I am in general agreement with the observations and remarks of my colleague,
Mr. Ryder, so I will not repeat the things that he has already said. I should
like to focus, rather, on some specific issues, the first of which involves the
negotiation of agreements of this sort, agreements including land rights,
self-government rights, and the constitutionality of that. Second, I should like
to look at the issue of overlapping claims.
In a number of decisions, but significantly in the Delgamuukw decision in
1997, which, of course, came out of British Columbia involving the Gitxsan and
Wet'suwet'en nations, the Supreme Court has been telling the Canadian government
and provincial governments that these issues should be settled by negotiation.
The Delgamuukw case involved both a land claim and a claim to self-government,
and the court did not resolve the issue. It sent the matter back to the trial
court. It said, in particular with respect to self-government, that it could not
resolve that issue and it sent a very strong message. Quite expressly, the
former chief justice, Antonio Lamer, said that these matters should be settled
by negotiation. In other words, the courts can give guidance and they can make
decisions about what the legal rights are, but the better place to settle these
matters is at the negotiating table.
In my opinion, that is exactly what the Nisga'a and the Canadian government
and the B.C. government have done. They have been negotiating this agreement for
years. It has been a long and hard struggle for them. They have produced an
agreement that, in my opinion, is a compromise on all sides. It was a very
difficult agreement to reach and this agreement should be respected.
I think the Supreme Court of Canada, if the agreement were brought before it,
would respect the agreement. I doubt very much that the Supreme Court would
strike down the agreement or the self-government provisions in it when it has
given explicit instructions to First Nations and governments in Canada to
negotiate these matters. If the Supreme Court were to strike down the
self-government provisions, it would be sabotaging the negotiations. We would be
in a situation where these matters would have to be litigated in the courts over
and over again. Each First Nation would have to litigate its rights to
The Supreme Court said in the Pamajewon decision in particular, which was
decided in 1996, that broad claims of self-government cannot be decided by the
courts. The courts must look at self-government issues in terms of specific
powers. That means that each First Nation, if it is a matter of litigation, will
have to seek self-government powers with respect to every little bit of
jurisdiction that it claims. As I said, each First Nation must go through the
process because the court has said that these matters are particular to the
traditions and the customs and cultures of particular First Nations. On the
constitutionality issue, just very broadly, I think the Supreme Court would
support the agreement.
I now want to turn to the issue of overlapping claims. I know that quite a
bit of concern has been expressed over this issue. In my opinion, the agreement
does deal with this issue adequately. It is not clear to me, on the ground,
whether there are valid overlapping claims or not. There may well be. I think
that arguments have been made and it is really a factual matter that would have
to be established one way or the other. The overlapping claims are there and
whether they are valid or not is a matter that is to be determined, I think.
The agreement provides for that in chapter 2, paragraphs 33 to 35. Those
provisions say, first of all, that the agreement does not affect the rights of
other aboriginal peoples in Canada. In fact, it could not. There cannot be an
agreement reached between one First Nation and a provincial government and the
federal government that would take away constitutional rights of other First
The fact that the agreement is legislated, or will be legislated into law if
the legislation passes, is not, in my opinion, going to affect other aboriginal
rights even if the agreement itself did not provide for that, because, once
again, those rights are constitutional. They cannot be taken away by ordinary
legislation. They can be infringed on by legislation only if it is justifiable
under a test that the Supreme Court laid down in Sparrow and other decisions.
The agreement does not affect the rights of other aboriginal peoples; not
only that, but the next two sections provide specifically for that. First, they
provide that, if a Canadian court decides that another First Nations has
aboriginal rights that are in conflict with the agreement, the agreement will
give way to the extent that those other rights exist. Second, the agreement also
provides that, if another aboriginal nation negotiates an agreement with
governments, with the federal and provincial government, that in fact infringe
on or in some way are inconsistent with the Nisga'a agreement, the parties to
the Nisga'a agreement will return to the table and renegotiate those parts.
There is provision in the treaty for contrary court decisions on other
aboriginal rights and also for negotiated settlements that will or may be
inconsistent with the Nisga'a agreement. There is a mechanism there to resolve
those kinds of disputes.
I do not see the overlapping claims issue as being a problem. I see it dealt
with in the agreement. I know that arguments have been made that, well, in the
past, the federal government as a matter of policy would not negotiate the
claims if there were overlaps. In this case, they have negotiated an agreement
even though there are overlapping claims. The problem here is that, if
overlapping claims must be addressed before any agreements are reached, it could
lead to an impasse in certain situations. Basically, it would give one
aboriginal nation a veto over land claims brought by neighbours. I do not think
that that is appropriate. I think, in practice, it is preferable if agreements
can be reached before handing over overlapping claims, but I do not think they
should be an impediment that would prevent any First Nation from going ahead
with its own agreement. As I said, the provisions in the agreement itself deal
very well and adequately with this issue.
The Chairman: Thank you both for your presentations.
Senator Tkachuk: My concern in regard to this bill and this treaty is the
question of just exactly what we are getting here. Not being a constitutional
lawyer, I may put this in more practical terms than in your learned paper as to
what this treaty is and what it is not.
I want to address concurrent power. From what I understand, we have federal
power and provincial power. We have all those powers delegated by those
institutions to other forms of government -- municipalities; other Indian bands,
frankly; the Yukon. What is concurrent power? This is unique and new; it has
never been done. What is this? If it is not a delegated power and if sections 91
and 92 have not been given away by the federal or provincial governments, then
what is it? What kind of an institution is it and what will we have in this
country when they are all done and there are hundreds of them?
Mr. Ryder: On the issue of concurrent power, the appropriate contrast there
is concurrent versus exclusive. I do not think it needs to be bundled with the
issue of delegated power, which really needs to be compared to the question of
whether the powers of self-government are delegated or inherent. They are
separate issues and delegated or inherent powers can be either concurrent or
exclusive. They are really distinct issues.
Our Constitution, at the moment, is familiar with the idea of both exclusive
powers, which is the usual course in sections 91 and 92 of the Constitution Act,
but there are also other powers that are concurrent or shared by the federal and
provincial governments. We decided here not to take away any power from the
federal or provincial powers but to confer concurrent jurisdiction on the
More relevant for the issues that have been raised before the committee,
however, is the distinction between inherent powers and delegated powers. There
has been a great deal of discussion about how this agreement, by dealing with
self-government, is part of the land claim, and entrenching powers is part of
the delegated model that characterizes, say, the Sechelt legislation.
That is consistent with our evolving constitutional understanding of the
nature of aboriginal self-government. It seems clear to me in the Supreme Court
of Canada jurisprudence that the course of an aboriginal right of
self-government lies in prior sovereignty and prior occupation of the land by
aboriginal peoples. That is their definition of aboriginal rights. Aboriginal
rights are not something that is delegated or created by any document enacted by
non-aboriginal governments; they are inherent in the distinct history of
aboriginal peoples. Not only is the Supreme Court taking that view of aboriginal
rights, but the Canadian government has expressed its commitment to viewing
self-government powers as inherent as opposed to a creature of federal statute.
The treaty embodies those evolving understandings of the nature of
self-government. Frankly, it is not possible to turn back the clock and sit down
realistically with First Nations and say, "We are willing to negotiate
self-government, but only within the delegated model." The reason for that
is the legal understandings have evolved to the point -- and it is primarily the
impact of section 35(1) in the jurisprudence -- where we see aboriginal
self-government as inherent in their history as the prior occupants of the land
in organized societies. Given that that is the evolving and clearly expressed at
this point legal understanding, it is not possible. It is not realistic to
propose conducting negotiations with First Nations now within a delegated model.
It asks them to give up far too much in terms of their current legal
Senator Tkachuk: You are saying that in 1867, when they were drawing up the
Constitution, lurking in the background was another power. It is almost like
another power that they never considered at the time, but in 1983 or 1982 it was
considered and it has evolved over the last 18 years into this creature that we
now have, called the Nisga'a Final Agreement. You seem to be describing a third
order of government here -- that is, another level that we had not considered.
Mr. Ryder: It is appropriate to describe a third order of government. We
already have municipal government. When we say a third order, I mean a third
order of government that has constitutional status. I did not mean to take issue
with other witnesses who have suggested that the treaty gives constitutional
protection to a third order of government; that is true. All I meant to suggest
was that it is not new in doing so.
Senator Tkachuk: It is new to me and new to most of us.
Mr. Ryder: There are good arguments, but there is still room for debate --
and, senators have been fully exposed to the debate -- that the aboriginal right
of self-government is already recognized in section 35(1). Therefore, the treaty
is not creating a new order of government but it is giving clear definition to
it in the form of treaty rights.
Senator Tkachuk: I have a lot to ask here. As you know, I have kept quiet the
whole evening and have not used any time at all, but I have been waiting for
this because it bothers me.
If the federal and provincial powers of sections 91 and 92 now lie
concurrently within this agreement and within this particular governing body
with the permission of the Parliament of Canada and the legislature of B.C., how
much section 91 and 92 powers can we slide over to them? That is what you are
saying, is it not? That means we can slide all of them, if we want. At one time,
the Indians had their own method of defending themselves. They had their own
army, had their own courier service, in a way, and they had their own
communication system with smoke signals. I do not know how they did it in B.C.,
but in the Prairies you can see for miles. That could actually all be given
away, could it not? Could all the section 91 and section 92 powers be given away
as concurrently into this agreement? That is the logical argument that you are
leading me to -- namely, that we can secede them all and give them all to the
Mr. Ryder: As I said at the outset of my presentation, it is important to see
this process as being primarily about the reconciliation of the prior
sovereignty and prior occupation of Canada by aboriginal peoples, with the
assertion of the sovereignty of the Crown. In 1867, because the aboriginal
viewpoint was not represented in the negotiations and formulation of the 1867
Constitution Act, we did not take into account the aboriginal perspective. The
1867 act, from the point of view of aboriginal people, says absolutely nothing
about their legal rights and entitlements.
What we are trying to do now -- and what we have been trying to do for many
years with the 1982 act and the process of treaty making -- is reconcile the
assertion of sovereignty that did not take into account the prior sovereignty of
aboriginal peoples. We have, in a sense, rediscovered their rights.
Section 35(3) entitles the Crown to enter into treaties with aboriginal
peoples and to have those treaty rights become entrenched and limit the powers
of federal and provincial governments. It may well be that there are other
constitutional principles and other parts of the Constitution that will restrict
what governments can agree to in entering treaties with aboriginal peoples.
We do not need to be concerned about the federal government abandoning its
powers entirely. What governments are embarking on here is achieving a
compromise between federal and provincial powers of government and the
self-government rights of aboriginal people.
Senator Tkachuk: Your logic leads me to think that this aboriginal power that
has crept into our Constitution has come because in 1867 we did not recognize
it. That is to say, it has arrived from somewhere in the past. That is almost an
international way of looking at it.
I should like to know whether you think that this applies. In other words,
this inherent right comes from some kind of law or some kind of philosophy of
law. Perhaps this inherent right is true with respect to the Swedes and the
Ukrainians. From where does this all come? Can we do this in the United States
or in Australia? Does this inherent right apply everywhere? Does it sort of
apply internationally? Is that what this is all about?
Mr. Ryder: That question is so large that, perhaps, I can pass it to my
learned colleague Professor McNeil, who has knowledge of the status.
The Chairman: Why do we not do that? I will ask Senator Andreychuk to be
patient for a few hours yet.
Mr. McNeil: The inherent right that my colleague has been talking about is
rooted in the fact that aboriginal peoples were in North America -- and this
includes the United States and Canada -- prior to the arrival of the Europeans.
The Supreme Court has been telling us over and over again that that is where
aboriginal rights come from.
Ever since the 1830s, the United States' Supreme Court has said that this
inherent right includes a right to self-government. It is the sovereignty that
the Indian tribes in the United States had prior to the arrival of the
Europeans. They retained part of that sovereignty. They retained sovereignty
over their own internal affairs. They lost international sovereignty. They no
longer can enter into international agreements with Mexico, France or whatever.
They are within the United States, but they have inherent sovereign powers that
come from the fact that they were sovereign prior to the arrival of the
In Canada, we have not reached that point in terms of our jurisprudence. I
think the Supreme Court is moving in that direction, but it has thrown it back
to the political arena. In other words, the Supreme Court has been hinting at
self-government in its decisions, but it has not made a decision in that
respect. It has been saying to governments: "Negotiate these things. These
are really political questions that should be resolved in that way."
What we see in this agreement is, with all due respect, not really a shift of
section 91 or section 92 powers to the Nisga'a. Rather, it is a recognition that
the Nisga'a have an inherent right of self-government and that that right is
constitutionally protected. It has been thus since 1982. It is necessary to
define that right. How will it be defined? It will be defined either by the
courts or by governments through negotiations. This agreement is the latter. It
is a definition of the aboriginal right, through negotiations.
Senator Andreychuk: I wish to follow up on Senator Tkachuk's point, and I
will try to use non-legalistic terminology. I have always taken the Constitution
to be a reflection of the ability of a sovereign state to determine how it will
govern itself in general ways. Senator Beaudoin has said time and time again
that the rights are embedded in the Constitution, either with the province or
with the federal government, and anything not contemplated in 1867 is residual
with the federal government.
Section 35 has come along and recognizes that, perhaps, our Constitution of
1867 was not a full and complete Constitution. I understand it to that point.
Your logic leads me to say that if the sum total of everything is either
provincial or federal, and we later recognize that something is aboriginal, then
someone has to cede power to the aboriginals. In my opinion, it is either a
ceding of jurisdiction out of the Constitution, or we have to come to the
conclusion that our Constitution was flawed to start with and, therefore, there
has always existed a third level of government.
What you have said does not lead me to say that we need a constitutional
change. In the one case, we are saying, "In 1867, we did not put it
together, and the people of Canada must resolve, whether they are aboriginal or
non-aboriginal, how they will live together with the Constitution." The
more simplistic way of looking at it is to say, "If everything was vested
into the provinces or the federal government, then what parts are now
legitimately in aboriginal hands?" Therefore, the question is whether that
is also a constitutional change.
Mr. Ryder: Senator Andreychuk, although it is a very complicated issue, the
simple answer is that we made that decision in 1982 and 1983. That is to say, we
made a decision to entrench in the Constitution an explicit recognition of
aboriginal rights and treaty rights. We made the decision in 1983 to embrace
treaty rights that were concluded in the future.
Canadian governments understood that by making that decision they were
placing limitations on their own powers that had not previously been recognized,
at least in the jurisprudence of Canadian courts. From the aboriginal
perspective, however, those limitations on Canadian governments' powers ought to
have been recognized because of aboriginal inherent rights of self-government
grounded in their prior sovereignty and prior occupation of the land.
I see the crucial step in terms of altering our incomplete constitutional
understanding, at least from the perspective of non-aboriginal governments. From
the perspective of non-aboriginal drafters of the 1867 act, we have altered our
previously incomplete understanding in an attempt to achieve reconciliation of
the assertion of Crown sovereignty with the prior sovereignty of aboriginal
peoples. We have done so by entrenching in the Constitution aboriginal and
treaty rights. This process is exactly what was contemplated by those amendments
in 1982 and 1983.
Mr. McNeil: In 1867, sections 91 and 92 affected the division of powers
between Parliament and the provincial legislatures. Those were not exclusive
powers at that time. For example, the Imperial Parliament retained legislative
jurisdiction over Canada in matters generally until 1931 in the Statute of
Westminster, and over constitutional matters until 1982, when we got our own
amending formula. To regard sections 91 and 92 as an exhaustive distribution of
powers is not really accurate in terms of our own constitutional history.
As Professor Ryder has pointed out, at the time aboriginal peoples were not
considered. They were not part of the process. Today, and especially since 1982,
there is recognition that there was something wrong with that: They were left
out and they should not have been left out. Our thinking has changed a great
deal over the last 140 years. We are now in a different situation.
The American situation is very similar. They have a constitution, state
powers and federal powers in Congress. Yet, 45 years after their constitution
was put into place, the Supreme Court said that that does not take away the
inherent jurisdiction of the Indian tribes over their own affairs. The United
States has not had a problem with a constitution not taking away the inherent
jurisdiction of aboriginal peoples within the country. We can learn something
Senator Andreychuk: I should like to return at a later time to the U.S.
situation. They do not recognize a third level of government. They have gone
their own way. I think that Canada, quite rightly, is exercising its sovereignty
I was simplifying because our Chair told me to do so. I was not avoiding the
Imperial powers that were left.
I want to ask a question about the overlap situation. I happen to believe
that the court sidestepped or, perhaps, in its wisdom, said, "Since you
must live together, negotiate how you can best solve this conundrum of
aboriginal rights and non-aboriginal rights." I am concerned that other
aboriginals, if they have valid claims, will not get to negotiate in the same
way with the federal and provincial governments because it has been agreed that
the overlapping areas are to be Nisga'a. If a court or some other process
determines that their rights should be taken into account, then there is a
methodology here to get to it. However, if full and unfettered negotiation is
what the aboriginals should have, I see at least two groups that have been
identified to us that have less of an opportunity to come to a just settlement
than the Nisga'a have, as a result of moving the Nisga'a forward without the
Mr. McNeil: That is not the way I interpret the agreement. There are actually
three provisions dealing with overlapping claims. The first provision says
simply that the Nisga'a agreement does not affect the rights of other aboriginal
peoples in Canada. The second one deals with the issue of overlapping claims
that may be decided by a subsequent court decision. That court decision will
override the Nisga'a agreement to the extent that a court finds that there is a
valid overlapping claim. There is a third provision, which I think does, in
fact, address your concern, and I think it is a valid concern. The third
provision provides that, if Canada or British Columbia enters into a treaty or
land claims agreement with another aboriginal group in British Columbia and that
agreement or treaty adversely affects the Nisga'a agreement, then the parties to
the Nisga'a agreement will go back to the table and they will negotiate some
kind of compensation or some alternative for the Nisga'a.
In other words, there is a possibility here for a negotiation of an agreement
that actually takes away some of the rights that the Nisga'a have in their own
agreement. If the parties cannot agree to that, that section of the agreement
provides that it will go to the dispute resolution section of the agreement. In
other words, if the Nisga'a, Canada and B.C. cannot agree on what the Nisga'a
should receive in replacement for what has been negotiated away from them with
an agreement with another aboriginal group, then they need to go to binding
arbitration or have the issue resolved in court.
Your concern is valid but, on my reading of the agreement, it has really been
Senator Andreychuk: My point was that we have been told repeatedly that this
negotiation was in good faith from all three parties. If it was, surely the
federal government negotiated lands believing that the Nisga'a should have those
lands. It would be highly unlikely that the same government could sit down and
now believe that they belong to another group. It seems like a negotiation going
Senator St. Germain: Are you saying, Professor McNeil, that the final resort
is that, if they cannot negotiate and they cannot arbitrate, those native bands
that are affected by the overlap will be forced into litigation? Mr. Ryder has
quoted Delgamuukw and what have you, and yet he said that non-residents would be
forced into litigation if they wanted to enforce their rights under the Charter.
I have told the Nisga'a who are sitting here tonight that there is one issue
that bothers me. It is the fact that we are pitting native against native. You
have sat here fairly soberly and quietly and tried to dismiss this as nothing,
really. The people who are impacted by this, believe me, see it totally
differently. Am I correct in assuming that the court of final resort will be
litigation at huge costs to these people? They are totally dependent on the
federal government, who have negotiated, possibly in good faith, for the funds
to enable them to defend their lands or claims, and you say that this is a fair
way to proceed?
I am sure you are familiar with the Luuxhon case. I am no lawyer, but I know
one thing came out of there. The judge accused the government of sharp dealing
and made other references to the fact that the government was not dealing in
good faith and predicted a devastating outcome to this whole process if this was
not dealt with properly at this time. I ask for your comments in regard to that.
I am sure you are familiar with the Luuxhon case much more than I shall ever be.
Mr. McNeil: I think that I did not express myself clearly. The dispute
resolution part in this provision applies to the Nisga'a, to the federal
government and to the B.C. government. In other words, if Canada and B.C. enter
into an agreement with another aboriginal nation that negatively effects the
Nisga'a agreement, then the parties to the Nisga'a agreement have to try to
negotiate and come up with alternatives. In other words, the Nisga'a who have
lost something to the neighbouring aboriginal people are entitled to get
something else from the federal or provincial government.
Senator St. Germain: Unless they agree to changing the agreement, the Nisga'a
do not have to change the agreement.
Mr. McNeil: The way this section is written, another agreement can override
their agreement. They can actually lose rights that they have negotiated if a
neighbouring aboriginal people negotiates an agreement that has an adverse
effect. They have a remedy. The remedy is that Canada and British Columbia must
provide them with an alternative.
Senator St. Germain: I recognize that.
Mr. McNeil: It is at that point that, if the Nisga'a and Canada and B.C.
cannot agree on what alternative the Nisga'a should have, the issue goes to
compulsory arbitration or to litigation. It is not the land claim.
Senator St. Germain: Arbitration or litigation -- which is it?
Senator Tkachuk: Or compulsory arbitration.
Mr. McNeil: The stage three provision in the dispute resolution chapter
provides for one or the other.
Senator St. Germain: Are you aware of the details surrounding the overlap in
Mr. McNeil: I know that there are overlapping claims, and they may be valid.
I do not wish to comment on that issue. That is a factual issue rather than a
strictly legal one.
The Chairman: Did you wish to comment, Mr. Ryder?
Mr. Ryder: No.
Senator Beaudoin: My question is very short. I listened very carefully; in my
opinion, you are saying that this treaty was made after 1982 but that section 35
of the Constitution Act covers treaties made since 1982. Consequently, the
treaty is just one treaty among many others under section 35. If that is true,
it is protected by the Constitution. Whether it is tantamount to a third order
of government or not, it is protected because it comes under section 35.
Therefore, the whole discussion is over if your theory is right.
As far as I can see, the Supreme Court has said in many cases that the treaty
rights there are those existing in 1982. If you say to me that the Supreme Court
is going to include the treaties to come, then I agree with you. Is that what
Mr. Ryder: Precisely, yes. I believe that the amendment in 1983 was enacted
precisely to put that question beyond doubt. Of course, from the point of view
of the purpose of section 35, it does not make any sense to limit the protection
to treaties that were in existence in the past, given that section 35(1) is in
response to the problems that arose when treaty protections did not have
constitutional status and did not have, therefore, protection from unilateral
derogations that were inconsistent with the honour of the Crown. It was an
attempt to give constitutional protection to treaties and therefore make the
rights in treaties more secure. In that sense, from the point of view of
non-aboriginal Canadian governments, it was an effort to say that in the future
we will behave in a more honourable way and give some constitutional priority to
the treaties. Given that kind of understanding of the rationale and the purpose
behind section 35(1), of course it made sense not to restrict it to historical
treaties. I believe the 1983 amendment was just in case there is any doubt about
that, because the words "existing treaty rights" could be interpreted
as "existing as of".
Senator Beaudoin: That is the first time I have heard that argument.
Mr. Ryder: You would agree, would you not, that the language in section 35(3)
is quite clear on this point? The section says that existing treaty rights
include treaties that have already been concluded and treaty rights that may be
so acquired in the future. I have not quoted exactly.
Senator Beaudoin: Yes, acquired in the future. If that is right, it means
that the Government of Canada could conclude a treaty with any aboriginal nation
at any time and it would be constitutionally protected by section 35. There is
no need to amend the Constitution if they can do that. Is that your theory?
Mr. Ryder: That is my theory with respect to the establishment of the rights
of aboriginal peoples, yes.
Relating back to Senator Andreychuk's earlier question, it is a mistake to
conclude therefore that it is a completely unlimited treaty-making power,
because the treaty-making power will be constrained by the other parts of the
Constitution and by the Charter of Rights. Since the entering into of treaties
is governmental action, it will be constrained by the Charter.
Senator Beaudoin: I should like the court to say that.
Mr. Ryder: I think it would be quite clear in this context of Bill C-9. It
will be necessary to ratify the treaty and bring it into legal effect, and that
is obviously an act of the federal government that is subject, like other
legislation, to the Charter of Rights and Freedoms.
The Chairman: There is not a lawyer in this room who would not like to be on
that brief, on one side or the other, before the Supreme Court of Canada.
Senator Beaudoin: I have been briefed.
Senator Grafstein: Everyone views 1982 and 1983 in a different way from their
different perspectives. I was around in 1982 and 1983. Frankly, my personal
version was that it was clear that land claims were to be dealt with by treaty
but the question of self-government and questions like that were somewhat
different and distinct. Hence, I assumed that the Royal Commission on Aboriginal
Peoples concluded a few years ago that when it came to the governmental aspects,
there had to be a constitutional amendment. You have read that. I think it is
Volume 3, Governance Provisions. Why did the royal commission come to the
conclusion that when we dealt with the third level of government, as opposed to
land claims, it required a constitutional amendment, if your "growing
tree" theory of the Constitution is correct?
Mr. Ryder: You are referring to the report of the Royal Commission on
Senator Grafstein: Yes.
Mr. Ryder: Professor McNeil is probably more familiar with the report than I,
but from my understanding of the chapter on governance and their earlier report
entitled Partners in Confederation, and perhaps my memory is failing me, I do
not recall them saying it was necessary to have a constitutional amendment to
give effect. That was the recommendation. They concluded that aboriginal rights
of self-government were inherent, and whether or not we explicitly recognize
them through a constitutional amendment, they exist because they have not been
fully extinguished through the clear and plain intent of the Crown.
Senator Grafstein: I do not want to debate this. Perhaps I should read it
again. I concluded that they came to the conclusion, after weighing all the
evidence, that for clarity and concision and certainty you needed a
constitutional amendment when it came to self-government.
Mr. Ryder: My point is simply that they did not say it was necessary to give
legal recognition to it.
Senator Grafstein: Nothing is necessary.
I wish to deal with another aspect that has been of particular interest to
me. Your brief is very interesting when it comes to this issue. We have heard
the earlier testimony about the Charter and the right to vote. It has been a
particular concern of mine. The evidence before the committee is very succinct
on this issue. There are somewhere between 80 and 110 non-Nisga'a residents on
Nisga'a lands who do not own land. They tend to work on the land as teachers,
doctors and the like. We were told that, when this question of their right to
vote was explicitly discussed, they could not get concurrence of 70 per cent of
their colleagues to agree to provide the vote.
Then I read Corbiere and your quote here and Justice McLachlin's last
decision. This affects not the case that I am putting but an easier case, in a
way. It is members of a tribe that live off the reservation demanding votes on
the reservation. The conclusion was, in the words of Justices McLachlin and
But they present no evidence of efforts deployed or schemes considered and
costed, and no argument or authority in support of the conclusion that costs and
administrative convenience could justify a complete denial of the constitutional
right. Under these circumstances, we must conclude that the violation has not
been shown to be demonstrably justified.
I am waiting to hear the Nisga'a come back and deal with this issue. We have
been told by the mayor of Terrace that a small number of people would like to
have the vote. They are disturbed about this. I can understand them not wanting
to make a claim, because they are working there, so it is up to us, the Senate,
to deal with minority rights and regional responsibilities and to make the claim
where they are not able to do so.
You dismiss this very lightly by saying that the courts will use section 5 to
protect the rights. There is no provision in the Nisga'a agreement to provide
for appropriate rights, but we have been told now on the evidence that at this
moment they have no present intention of giving voting rights to that minority
group. You say concerns about minority rights should not lead us to reject the
treaty. I am not suggesting that I am about to reject the treaty; I am
suggesting that I should like to have satisfaction before we approve the treaty
that minority rights will be fully protected, as they are in every other place
in Canada. What is your view about that?
Mr. Ryder: I did not mean to suggest that it is a matter that should be taken
Senator Grafstein: I discussed this with either you or your colleague by
telephone one time.
Mr. Ryder: I wanted to address this issue because I think it is a matter of
serious concern. I do not think it is appropriate to direct our concern to the
treaty provisions about this issue.
I think the simple answer to your question is that non-Nisga'a residents of
Nisga'a lands have the exact same rights that the rest of us have pursuant to
the Charter of Rights and Freedoms. That is why I think the Corbiere case is
very instructive, because what you have there is the Supreme Court of Canada
recognizing that the situation of on-reserve status Indians and off-reserve
status Indians is very different, in terms of their interest in band government,
and therefore they say it is not appropriate to give them the exact same rights.
We are not saying that they should have the right to vote on all issues. That
would be wrong because it would fail to recognize the fact that they are in a
very different position.
I think we can make the same argument about non-Nisga'a residents. It would
be wrong to give them a right to vote because their interest in matters within
Nisga'a jurisdiction are so very different from the interests of Nisga'a
citizens. However, it would also be wrong to completely deny them a right to
vote or rights of political participation generally, so there is nothing. This
is where it is wrong to focus on the treaty. There is nothing in the treaty that
says that non-Nisga'a citizens do not have, or cannot be given, the right to
vote or cannot be given rights of political participation. The treaty leaves
that issue open to a range of flexible solutions, which is exactly what the
Supreme Court of Canada said in the Corbiere case. They said that there is a
range of possible solutions that need to be discussed, and if the solutions
adopted by Nisga'a government in the future on this issue are considered
insufficient by non-Nisga'a residents, they have the right, like all the rest of
us, to go to court and argue that the Nisga'a government is violating their
equality rights in section 15 of the Charter. In other words, they have the
exact same rights as the rest of us.
Senator Grafstein: The problem with that argument is that it requires us, to
be fair to our constitutional mandate, to go through the 14 or 16 areas of
paramountcy and parse each one, as opposed to the other side of the equation,
which would be to grant them voting rights when it is absolutely clear, because
of the numbers, that in no way, shape or form, in the foreseeable or any future,
those 100 or so non-Nisga'a residents, which rotate from time to time, will
jeopardize or prejudice the majoritarian position. I still am in this personal
conundrum. Saying that we should leave it to the courts is an argument we keep
hearing around here and, again, we are sweating, frankly, trying to provide a
treaty, incorporated constitutionally, that has some certainty and will not be
ravaged by the courts. You leave me with that conundrum.
The Chairman: Unless you wish to reply, I would consider that a
Mr. Ryder: Just briefly, it is the exact same answer, that ultimately our
basic rights and freedoms, including rights of political participation, are
protected by the court. It is the same situation for people resident on Nisga'a
lands. Ultimately, that is where our faith here, as in other parts of the
country, has to lie, on these basic minorities rights that you are concerned
Senator Gill: I would like to say something here. We have been discussing a
very important question this evening. I think most of the aboriginal people
believe that they have rights there. People are not asking for rights. That must
be clear. In my opinion, all the aboriginal people in this country are not
asking for rights. They believe that they have rights. It was confirmed in the
royal proclamation and reconfirmed after that in the patriation of the
Constitution; non-native law also confirmed that.
People are looking for a way of dealing, a kind of partnership that they have
to find with non-aboriginal people, to have a better relationship. In the
patriation and in the 1983 law, it is clear that the government accepted that
the aboriginal people have inherent rights. That means prior to everything,
including the so-called discovery of this country. It is there. Do you agree?
I am coming back on point you have already raised, but I think it has to be
clear. We are making a lot of progress in our discussion today. I am glad about
Mr. Ryder: I do agree. That perspective is completely consistent with what I
have been trying to say today.
Mr. McNeil: I agree entirely, as well. What we are looking for here is a
partnership, a way of building a relationship with aboriginal peoples, so that
aboriginal peoples and other Canadians can live in a partnership. It involves
much thought; there are important decisions to be made. However, as Professor
Ryder pointed out, the decision was made in 1982 to constitutionalize the rights
of the aboriginal peoples, to give them the protection they did not have before.
We are now dealing with some of those rights through negotiations.
In negotiating agreements, aboriginal peoples are negotiating around what
their aboriginal rights are. If the agreements themselves, the rights they
receive in these modern-day treaties, if you like, were not constitutionally
protected, they would be giving up constitutionally protected aboriginal rights
for rights in treaties that are not constitutionally protected. For that reason,
the constitutional protection extends to modern agreements of this sort as well
as to historic treaties.
The Chairman: I want to thank you both for being here today and for providing
your advice and support. As you can tell from the questions, there was a lot of
interest in the opinions you gave us.
Our next witness is Mr. Bill Whimney. Welcome, and please proceed.
Mr. Bill Whimney, Committee Chair, Native Affairs, B.C. Wildlife Federation:
Mr. Chairman, first, I would like to inform everyone that I am a layperson. I do
not have a degree in law. I do not purport to represent the law in any respect,
so please be patient with me.
I represent an organization of 35,000 conservationists in the province of
British Columbia, comprising 147 composite organizations. The B.C. Wildlife
Federation is the largest fish and wildlife conservation organization in British
Columbia. My direct involvement in the Nisga'a treaty process, and the B.C.
Treaty Commission process, dates back to the provincial third-party advisory
committee on aboriginal land claims and continues through the treaty negotiation
advisory committee and regional advisory committee to present.
Before looking at the Nisga'a treaty, I should like to give you some
background on our interest in treaties. We have been long and willing
participants in the process. Approximately 15 years ago, the B.C. Wildlife
Federation foresaw the implication of the comprehensive claims issue, as it was
known at the time, in terms of fish, wildlife and resource management. We
believed that the Indian issue needed resolution, that negotiations were the
best route for solution, and that treaties would touch all citizens in one way
or another. We also recognized that we had common ground with aboriginal people
in our concerns, interests and our traditional use of fish and wildlife
I would like now to present for the record some of our concerns with the
Nisga'a treaty. Because our invitation to attend this hearing arrived late, my
submission will be neither detailed nor complete, but I hope I can highlight for
you some of our most important priorities. I feel confident that our other
concerns will have been, or will be, brought forward by other witnesses.
Our organization is guided by the policies adopted at our 1987 annual general
meeting, and they are attached. I should like to express our concerns about the
Nisga'a treaty in the context of some of the principles stated in our policy.
First, the fisheries and wildlife resources are not to be used as trade-offs
in negotiations over land benefits and other resources. Immediately prior to the
signing of the Nisga'a AIP, we were apprised of information at the TNAC wildlife
committee with respect to fish and wildlife allocations and processes. When the
AIP was signed, we were informed that the reason the document was so different
from what we were being told in the wildlife committee was that there were
trade-offs in the negotiations. We felt that the government did so because of
pressing self-imposed timelines and a total lack of defined mandates with
respect to fish and wildlife issues. The Nisga'a treaty has done nothing to
improve this situation.
Second, the two senior governments, through legislation, will continue to be
the final authority on fisheries, wildlife and other resources and for their
management and allocation. The Nisga'a treaty states this to be the case
repeatedly throughout the text. However, when it comes to management committees,
the treaty states that the minister will institute the recommendations of the
committee or provide reasons for not acting on them. This is contrary to the
indications of the Supreme Court of Canada in R. v. Sparrow, where it stated
that the onus of proving a prima facie infringement lies with the individual
challenging the legislation. If the minister must justify every divergence
between his management decisions and the recommendations of the committee, or if
the process is allowed to become convoluted or cumbersome, it will prevent
management from being done in a timely or effective fashion. This will adversely
affect conservation and interfere with harvest for non-aboriginals. The Nisga'a
will have the right to harvest for domestic purposes in any case.
Third, access to use fish and wildlife and outdoor recreation resources must
be maintained for all citizens, consistent with the rights of land ownership and
the requirements of management.
It appears that the Nisga'a will be allowed to impose fees and conditions on
anyone who will harvest fish and wildlife on Nisga'a land. This is an expansion
of the authority normally attached to land held in fee simple and has the
potential to adversely affect the harvest of non-aboriginals on Nisga'a land.
Fourth, cost-benefit ratios in economic and social terms must be available
for all proposals under negotiation. Understanding the cost and benefits to both
aboriginals and non-aboriginals is required so that solutions can obtain public
We have received no indication that these studies were done prior to the AIP
or the treaty. It becomes apparent by the lack of real input into the management
of fish and wildlife in the area defined in the treaty that the costs or
benefits to other than Nisga'a citizens is secondary to the benefits conferred
in the treaty. Nor does there appear to be much protection for the rights of
non-aboriginals in the piecemeal fashion in which fish and wildlife will be
managed as a result of overlaps in aboriginal traditional territories, treaty
land settlements and treaty-established fish and wildlife committees.
Fifth, Indian self-government to the level of municipalities and regional
districts is acceptable, but the concept of separate and independent nations is
not. The authority and responsibility of the provincial and federal governments
must be paramount.
There are so many areas in the treaty where it is stated that, if there is a
conflict between the laws of general application and the laws set down by the
Nisga'a government, the Nisga'a laws will prevail. This does not happen in
municipal or regional district governments; it appears to create a new level of
government. This is unacceptable to our organization, as it has the potential to
create jurisdictional conflicts with respect to fish and wildlife, and effective
management will suffer as a result.
Sixth, third parties must be involved in the process of negotiation. The
federal and provincial governments must, as the principles representing all
non-aboriginal interests, ensure that non-governmental organizations have an
active window to negotiations.
The agreement in principle and the treaty were negotiated in secrecy. Our
participation was confined to being asked to comment on the general concepts
only, and we were not party to actual information from the negotiations in
enough detail to be able to assess the progress of negotiations or the extent of
the impact on our interests or rights. Throughout the process, we were prevented
from discussion, in any but the vaguest terms the information or discussions we
participated in, by the confidentiality agreement that we had to sign just to be
involved in the process. The new B.C. treaty process is considerably more open
and it is our hope that the results will be more acceptable to all.
Seventh, the B.C. Wildlife Federation does not support the sale or trade of
wildlife beyond the current laws of general application. This principle dates
back to the late 1800s and the early 1900s, when market hunting almost destroyed
the wildlife of Canada and the United States. The Nisga'a Treaty has provisions
for it. In pre-contact times, this practice may have a necessary part of Nisga'a
life. However, in modern times, with the ability to secure an income in other
ways and with modern methods of harvest, we do not believe there is
justification to return to this ancient and inappropriate practice.
Eighth, the sale of fish caught under the provisions for domestic -- food,
social and ceremonial -- use must not be allowed to be sold. The treaty
identifies their domestic harvest as separate and exempt from the normal
provisions of the fisheries management protocols. If they are able to sell this
fish, there is a potential for abuse in times when allocations are lower than in
the other fisheries.
One of most serious problems with the Nisga'a treaty is the lack of
certainty. We were told by government from the beginning that the treaties will
bring certainty. This may be true at the level of government administration;
however, the B.C. Wildlife Federation represents individual citizens and groups
with respect to on-the-ground issues and dealing with fish and wildlife. The
kind of certainty that our membership requires is that which will allow their
interests to be addressed in a simple, effective and understandable fashion.
They also require real opportunities to participate in the management of those
resources as stakeholders and not just observers.
The migratory nature of the resource makes it imperative that management be
done on a regional or watershed basis. Overlapping or conflicting jurisdictions,
overlapping aboriginal management committees, or the exclusion of real
participation by non-aboriginal organizations are the components of a recipe for
disaster and discontent.
The effectiveness of any treaty or agreement is in its implementation. It
will be very difficult to implement the fish and wildlife provisions of the
Nisga'a treaty due to the potential for misinterpretation of the intent of those
provisions in the treaty.
Throughout the process, as is well-evidenced in the minutes of the treaty
negotiation advisory committee meetings, we called for a definition of terms we
felt were important to understanding the issues. At the TNAC wildlife committee,
we spent over six months developing a definition of "conservation", a
very important and oft-used term. Another expression is "significant
risk." These terms are used extensively in the treaty but do not appear in
the definition section. It has been suggested that treaties are never contested
in court, but their interpretations are. In the absence of these definitions, it
will be impossible to interpret the fish and wildlife provisions of the treaty
or the role of minister, the Nisga'a or third parties. Our definition can be
found in the material attached to this brief.
Participation by non-Nisga'a people on the wildlife committee board will be
hampered by the fact that Nisga'a participants will receive $20,000 annually,
plus expenses for their participation, whereas non-Nisga'a participants will
receive nothing and must cover their own costs. Combine this with the fact that
wildlife management is effectively being moved from the regional and provincial
wildlife offices to locations that are less central; one could get the feeling
of being excluded. This, combined with the lack of progress toward the
institution of the committees and the apparent conflicts already developing as a
result of overlapping aboriginal use of the resource and some question of
priority use on the part of various stakeholders, is already causing us to have
An interesting thing to note about the Nisga'a treaty is that all through the
negotiation process we were told that the reasons for a negotiation climate that
seemed to favour aboriginal rights over and sometimes to the exclusion of
non-aboriginals was the interpretation of aboriginal litigation. It is important
to note that the Supreme Court of Canada in R. v. Marshall, in November 17,
1999, in reference to a motion for rehearing and stay, indicated in reasons for
judgment that the governments have, as a result of misinterpreting previous
judgments, wrongly ignored the rights of non-aboriginals. We feel that
misinterpretation led to unreasonable expectations on the part of aboriginals
and provided the motivation for governments to hold the rights, interests and
concerns of non-aboriginal stakeholders to be inconsequential. This might
explain why so many of our recommendations are absent from this treaty and the
degree of disharmony it seems to generate.
We believe that the purpose of the Nisga'a Treaty is to address the
inadequacies in the relationship between aboriginal and non-aboriginal citizens
and communities and to aid in developing a harmonious relationship between the
communities while respecting the rights of all British Columbians. However, the
concerns expressed here, if not otherwise addressed, may prove to be obstacles
to that very important goal.
Senator Chalifoux: I have before me an interpretation of the treaties
regarding fisheries and wildlife management. It says here that the Minister of
Fisheries and Oceans and the province will retain responsibility for
conservation and management of the fisheries and fish habitat according to their
respective jurisdictions. In addition, the Nisga'a government may make laws to
manage the Nisga'a harvest if those laws are consistent with the Nisga'a annual
fishing plan approved by the minister.
I am hearing from you something entirely different, yet this is what I am
reading out of the treaty.
Mr. Whimney: In actual fact, you answered your own question because it said
that the minister must, if it agrees with the Nisga'a plan. The treaty very
clearly states that in any case, where there is a deviation between the Nisga'a
plan and what the minister wants to do in the ministry, he must justify that.
Senator Chalifoux: No, I did not say that. I said that if those laws are
consistent with the Nisga'a annual fishing plan approved by the minister then
the minister must approve that plan before anything is put into place.
Mr. Whimney: That is the jurisdictional issue. But elsewhere in the document
it also says that if the Nisga'a put the plan forward, the minister
"will" -- and that is the word they use -- accept the plan or justify
his reasons for not so doing. We are saying that if the minister does not have
the ultimate authority, and if in fact they must spend time justifying every
little change in the management protocols, et cetera, they will bind up
fisheries and wildlife management to the point where those decisions may not be
made in a timely fashion.
Senator Chalifoux: Here again it says that the Nisga'a will prepare a Nisga'a
annual fishing plan for all species of salmon and other fish. After its review,
the Nisga'a annual fishing plan, if it is found to be satisfactory, will be
approved by the Minister of Fisheries and Oceans. Therefore, the plan must be
satisfactory to the minister.
Mr. Whimney: I am talking about the convoluted aspect of the process. I have
no problem with the Nisga'a being involved in the management of fisheries and
having the opportunity to put forward plans. To cite an example, our provincial
hunting and fishing regulations at one time came out and would be available
March 30, for the beginning of the new licence year, April 1. For the last three
years, our regulations have arrived later and later; for example, last year's
hunting regulations came out in the beginning of July, when the hunting season
starts in the middle of July. That leaves no time for people to make plans, no
time for people to understand where they were going or what they were doing, and
we were told by government that this was done entirely as a result of aboriginal
We see the Nisga'a treaty as the first of many, and we see the processes
created in the Nisga'a treaty as being the first of many. Our concern is that
wildlife management and fisheries management will be so convoluted as to come to
a standstill that will prevent non-aboriginals from harvesting either of those
resources, when the aboriginals have a right to harvest for domestic purposes,
which is the reason we harvest. In spite of that, if you notice in the treaty,
their harvest for domestic purposes is outside of the question of a management
Senator Chalifoux: At one time, I had a domestic licence for my family, and I
fished in northern Alberta. I know exactly what you are talking about. That
domestic licence was still just for my own family, for domestic purposes, not
for sale. I really must question your rationalization.
Mr. Whimney: My organization does not question in the slightest the
aboriginal right to fish for food, social or ceremonial purposes. In fact, we
are firm in the belief that that is not just an aboriginal right, that it is a
citizen's right. We identify that right as an aboriginal right, because when the
question was originally asked in the courts it was answered in the context of
aboriginals, because they asked the question. I firmly believe that if I were to
ask the Supreme Court of Canada if I have the right to fish or hunt to feed my
family the answer would be in the affirmative. They might inform me that my
harvest needs to be within constraints of government management, and we think
that is proper. The Supreme Court said very clearly that conservation was the
first priority. However, the reality is that we believe that is the right of
every citizen -- to harvest for food, social and ceremonial purposes.
What I am saying is that the nature of the structure that this treaty creates
is likely to cripple that process and make it so convoluted that our harvest
will come to a standstill while theirs is allowed to continue. Our concern is
not that the Nisga'a will over-harvest or will abuse this. Our concern is that
we think the Nisga'a will have the same problem that many other Canadians have,
that is, that they will get caught up in the convoluted method in which
government does business. The Nisga'a know how difficult it is to wade through
government business. What we think will happen in this treaty is that you will
put us in the same position they have been in for 125 years, and that we do not
like. We understand why they do not like being in that position.
Senator Lawson: On your page 4, you say that participation of non-Nisga'a
people in the wildlife committee board will be hampered by the fact that the
Nisga'a participants will receive $20,000 annually, plus expenses for their
participation, and non-Nisga'a participants will receive nothing and will need
to cover their own costs.
Does the establishment of this committee flow from the terms of the Nisga'a
Mr. Whimney: Yes, it does.
Senator Lawson: It specifically provides for a $20,000 payment for the
Mr. Whimney: It provides that the Nisga'a expenses will be covered. We have
managed to convince government that one of the non-native participants on this
committee should be the B.C. Wildlife Federation, because we represent so much
of British Columbia. We have been told that, if so, we will need to cover our
own expenses. Bear in mind that the Nisga'a committee will, logically so, meet
in Nisga'a country. That is what they are dealing with, their territory.
Senator Lawson: What is the number on the committee? Does it provide for
Mr. Whimney: I believe it was seven or nine.
Senator Lawson: In total?
Mr. Whimney: I am not entirely sure of the total number of members. We have
Senator Lawson: Who else, besides Nisga'a?
Mr. Whimney: The treaty is equally divided between the provincial government
and Nisga'a, with one federal government position to be the odd man out. That is
my understanding. We do not contest the makeup of that committee.
Senator Lawson: If there are nine, are there eight paid and one not paid?
Mr. Whimney: That would probably be the case.
Senator Lawson: What about our federal legislation for equal pay for equal
work and equity? What happened to that? Who negotiated this?
Mr. Whimney: I have not used that argument yet. I thank you for that.
The Chairman: You can pursue this question tomorrow with the minister, or
with the Nisga'a.
Senator Lawson: I would not vote for an agreement that provided those kinds
of conditions -- even that one condition. If we do not deal with fairness in a
simple matter like the establishment of the committee, how will anything else be
The Chairman: We will now hear from the next witness, Mr. Neil Sterritt.
Mr. Neil J. Sterritt: I appreciate the opportunity to be here tonight. Before
I begin, I would like to introduce my colleague, Wiimiwosiic Larry Skulsy. He is
a hereditary chief from the Nass watershed, and he has a short presentation to
Mr. Larry Skulsh, Hereditary Chief, Nass Watershed: Mr. Chairman, honourable
[Larry Skulsh spoke in his native language.]
I am a hereditary chief. I hold territory on the Nass watershed. I received
the name in 1994, after my uncle passed away. This process has been ongoing
since 1983. We have dealt with the Nisga'a on this issue for many years and we
made very little progress on the protocol that was established in 1995. It
eventually petered off as AIP accelerated.
Mr. Sterritt will address some of the matters we have been dealing with over
Mr. Neil Sterritt: I have been working on these issues since I returned home
in 1973. I was the research director of land claims for the Gitxsan Tribal
Council back in the 1970s. With the Calder decision in 1973, I first began to
work on the issue of the Nisga'a petition and this type of issue.
I was the leader of the Gitxsan from 1981 until 1987. From the very first, I
worked very much with Dr. Gosnell's older brother, James, as well as with Rod
Robinson, on constitutional issues. I have been working on these issues for a
long time. I was the leader when Delgamuukw was launched. There was no political
will on the part of the federal and provincial governments to deal with the
issues that were important to us, the types of things you talked about earlier.
I recognize that you are very busy, so I will not go any further into that
nor into the politics of the land claims issue. I do want to address the issue
of the Gitxsan territories in the Nass watershed. In doing so, I am here as an
individual, and because one cannot talk about the Nisga'a boundary in the Nass
watershed without talking about the Gianyow boundary, I will talk about both.
I have distributed the brief, including a map from BC Studies: the Nisga'a
Treaty. I will not use that map, but you may use it later to check your notes. I
have referenced, in my presentation, where the maps appear in the brief. I was
the author of a chapter in the BC Studies: the Nisga'a Treaty. I was the major
author of Tribal Boundaries in the Nass Watershed, which is a comprehensive
treatment of the issue that we launched under the protocol in 1995 and which was
never addressed. I will deal with that when I go through my paper.
The brief also contains some material dealing with the joint negotiations
between the Nisga'a and Gitxsan when we tried to resolve the overlap under the
protocol. In brackets are either a confirmation of what was said in a meeting
and forwarded by letter, either from the Nisga'a to the Gitxsan or the Gitxsan
to the Nisga'a, as well as other correspondence that relates to this issue.
All of this information, all of the correspondence and any tapes that we had
are available. The references are all in the brief. It is as comprehensive as it
can be. We will go from there.
The purpose of this submission is to set out the implications of the
government and Nisga'a refusal to fairly address competing territorial claims,
in other words, the overlap during Nisga'a treaty negotiations.
Reason and common sense dictate that overlap issues be resolved before
treaties are concluded. An aboriginal nation claiming title to land does not do
so in isolation of its aboriginal neighbours. Nisga'a lands were determined
without resolution of the clear and oft-stated statements of land ownership by
the Gitanyow and the Gitxsan.
I turn now to page 2, point 3: Not only is the recent Nisga'a claim
exaggerated, the evidence shows that they and the government set aside good
faith standards when dealing with the Gitxsan and Gitanyow on the overlap issue.
The Nisga'a have misled the public from the beginning. They and the federal
negotiator -- and the provincial negotiators, but the federal negotiator in any
event -- have misled the Senate about Nisga'a land entitlement in the treaty. I
will provide evidence for that.
I will skip point 4 and go to point 5. I will address four issues: first, the
existence of a territorial overlap in respect of land that belongs the Gitxsan
and the Gitanyow; second, the history of efforts by the Gitxsan to get the
Nisga'a to resolve the overlap; third, the absence of good faith on behalf of
the Nisga'a, British Columbia and Canada in dealing with the overlap; and,
fourth, misinformation about the overlap.
I turn now to page 3, point 2: There is no doubt that the Nisga'a have always
been aware of the territories and borders of their Gitxsan and Gitanyow
neighbours. This is under the heading, "Aboriginal Title and the Importance
Aboriginal title was summarized by the Supreme Court of Canada in Delgamuukw
as a "right to exclusive use and occupation of land..." The Nisga'a
claim to the entire Nass watershed overlaps known Gitxsan and Gitanyow
territories. The Nisga'a claim is not supported by the oral histories or the
documentary record in respect of the Gitxsan and Gitanyow territories. Fee
simple lands and other benefits allocated to the Nisga'a north of the Kinskuch
River during treaty negotiations are situated in lands that do not belong to
them; and if Bill C-9 becomes law, these fee simple lands and other benefits
will be transformed into constitutionally entrenched treaty rights.
If you look at the map provided, the Kinskuch River is roughly one third of
the way up the entire length of the river. It is about where the Nass River,
going slightly northeast, turns northwest and continues up. That is the Kinskuch
and Kiteen Rivers area.
There is no evidence that the Nisga'a have territory north of those two
rivers, despite the fact that they claim the entire territory that is
highlighted for you in yellow on your maps. The yellow area depicted is the
entire Nass watershed.
I will go to number 4 on page 3: Historical and recent Nisga'a evidence
proves a Nisga'a boundary with the Gitanyow one third of the way up the Nass
River, and a territory one third the size claimed by the Nisga'a. The
accompanying map of the Nass watershed shows the Kinskuch and Kiteen Rivers,
which is where the Nisga'a-Gitanyow boundary is, and, by extension, the extent
of the overlap. In other words, anything claimed north of the Kinskuch and
Kiteen, which is roughly one third of the way up the river, creates an overlap
with the Gitanyow and with the Gitxsan, and with the Tahltan, by the way.
Examples that illustrate these points can be found in the appendix of this
submission. The evidence is further elaborated in the two publications, Tribal
Boundaries in the Nass Watershed, UBC Press, 1998, and BC Studies: the Nisga'a
Treaty. As I mentioned, there are references to correspondence in the documents.
The next issue I will address is the lack of good faith by the Nisga'a -- an
issue that has been raised in questions here in the Senate. First, it is the
Gitxsan view that the Nisga'a have entered protocol agreements with the Gitxsan
in order to make it appear to federal and provincial negotiators and the general
public that they are serious about resolving the overlap. Examples abound in
correspondence and tape meetings between ourselves to show that this is so.
Since 1983, the record shows that the Gitxsan have approved overlap
discussions with serious intent to resolve the issue. That is why this book was
written and other things have been done.
Point 2 on page 4: In October 1986, the Gitxsan went to a meeting in New
Aiyansh where a Nisga'a spokesperson agreed with the Gitxsan that the 1913
petition does not include the entire Nass River. I will deal with that again
later. That appears, as you will see, in Tribal Boundaries in the Nass Watershed
in Appendix 5, page 261. That shows the Nisga'a petition as they interpret it,
and it shows that they do not go to the very head of the river as they claim
they do and as they claimed recently to the Senate.
Point number 4: In 1995, the Gitxsan and Nisga'a leaders signed a protocol
that was to "set out a process to determine the territorial boundary
between the Gitxsan and the Nisga'a." The protocol required that each party
withdraw disputed lands from treaty negotiation until such time as the parties
conclude an agreement. That protocol was signed by Dr. Gosnell and by our leader
at the time, Gordon Sebastian, in May 1995.
Regarding the 1995 protocol, Dr. Gosnell wrote a letter to Mr. Ebbels and Mr.
Osborn on June 12, 1995. In that letter to the federal-provincial negotiators,
he said in part:
We did not anticipate negotiating the precise definition of Nisga'a
Traditional Territory at this stage of our negotiations in any event, so our
protocol with the Gitksan should not affect our contemplated negotiating
schedule in any way.
That is from a letter that Dr. Gosnell wrote to the federal negotiators,
dated June 12, 1995.
I will not go through point 6, point 7, or point 8, upon which I have already
touched. On page five, under point 9, it notes that in a joint protocol meeting,
held on April 26, 1996, Nisga'a representatives insisted on making "sharing
and co-existence" the primary purpose of the protocol, despite the agreed
purpose we already had. The Gitxsan agreed that sharing and coexistence are
important principles, but not before determining who is doing the sharing and
who shares what with whom. The issue of the extent of Nisga'a title needed to be
resolved. The minutes of that meeting and those statements were confirmed in a
letter by Mr. Don Ryan, our chief negotiator, written to Dr. Gosnell on April
Mr. Ryan said in this letter that the Gitxsan would redraft boundaries if
found wrong. When asked to reciprocate, the Nisga'a did not answer.
Point number 10 on page 5: Mr. Rod Robinson, the Nisga'a tribal council
executive director at the time, wrote:
That is, the protocol committee.
...representing the Nisga'a were given specific instructions to conclude an
agreement with the Gitxsan on sharing and co-existence which you have refused.
That is Mr. Robinson to Mr. Ryan, on May 7, 1996.
Mr. Robinson also said that they were not willing to acknowledge Gitxsan
ownership of the upper Nass because they have powerful evidence of ownership of
the upper Nass since time immemorial. The Nisga'a have never provided the
Gitxsan with such evidence.
I refer now to point 11, on page 6. At a joint protocol meeting, the Nisga'a
committee members stated:
[We] do not want to see anything impede the progress of our signing the
Treaty ... the Agreement-in-Principle ... and I repeat, we realize now to allow
this to go on any further only creates unnecessary blockage to our Final
Agreement. That was stated in a meeting by the Nisga'a protocol committee.
Our chief negotiator confirmed that in a letter to Dr. Gosnell in May 1996.
In response, point 12, Dr. Gosnell wrote:
We hope that you will also understand that we cannot allow agreement on a
territorial boundary to be a pre-condition to our concluding a final agreement
with British Columbia and Canada. That is from a letter from Dr. Gosnell to Mr.
Ryan, dated June 17, 1996.
It is extraordinary to think that Canada, with its special responsibilities
to the Nisga'a's neighbours, would endorse this approach to treaty making.
The Gitxsan then proposed agreement on an independent arbitrator who would
answer the following question: "Have the Nisga'a got aboriginal title and
aboriginal right in the Nass Watershed above the Bell-Irving River-Nass River
confluence? That question was included in a letter I wrote to Dr. Gosnell on
June 20, 1996.
Locate Meziadan Lake in the middle of the map, and then go up a little and
you will see where the Bell-Irving River joins the main stem of the Nass. That
was the point that we said because our boundary with the Gitanyow is there.
There cannot be a boundary with the Nisga'a, therefore have they territory to
there? That was the nature of that question. We felt it was time to I have an
independent arbitrator deal with that question.
Dr. Gosnell finally promised that a comprehensive response to our tribal
boundaries document would be completed and would be made available to the
Gitxsan, Gitanyow, British Columbia and Canada. That was in an August 1, 1996
letter from Dr. Gosnell to Mr. Ryan. Dr. Gosnell also said:
...there will be no further meetings between the Nisga'a and Gitxsan Protocol
Committees until our comprehensive response to your Tribal Boundaries in the
Nass Watershed document is completed and finalized.
We first handed the document, 15 copies, to the Nisga'a in November 1995.
That is over five years ago. We have never had a response to this date.
Page 7 discusses the fact that the Nisga'a and the federal government
misinformed the public. We say that rhetoric and political expedience have
characterized Nisga'a and federal-provincial statements to the media and general
public. The examples given show that the Senate has been misled as well.
I do not want to go through all of it.We have evidence; I can show it to you.
We will just deal with what has come before you since you started your hearings.
First, the Nisga'a say they have consistently asserted their ownership of the
Nass watershed, that they are the only aboriginal people residing on the Nass
River, and that they have always relied upon the description of their territory
set out in the 1913 petition. They said this in their submission to the Senate
-- the submission was entitled "Facts about the Nisga'a-Gitanyow
Dispute" -- on November 25, 1999.
This claim is unfounded on their own evidence. In 1986, Nisga'a leaders
hand-delivered two maps to me in Terrace, B.C. They were labelled "Map
1" and "Map 2". Map 1 was exhibit 2 in Calder. May 2 contained
the following notation, placed there by the Nisga'a: "Map 2 represents the
Nisga'a Land Claims boundary as determined and outlined in the Nisga'a
Petition... in 1913." In the book Tribal Boundaries in the Nass Watershed,
on pages 142 and 143, you will see maps 18 and 19. Those are the two maps to
which I am referring. These maps were not drawn by the Gitxsan, they were drawn
by the Nisga'a. They were handed to me with those notations on them.
In addition, on pages 140 to 146, there is an elaborate explanation about the
whole context, not only of the Nisga'a petition of 1913, but the fact that we
discovered during research that there was a 1908 petition that said how far up
the Nass River the Nisga'a petition was meant to go.
The Nass watershed contains 21,150 square kilometres. By their calculation,
the Nisga'a claim 15,900 square kilometres in map 2 -- their own depiction of
the 1913 petition -- of which approximately 5,300 square kilometres are outside
the Nass watershed. Therefore, the Nisga'a claim in the Nass watershed using
mapping calculations is about 11,000 square miles. That figure fluctuates from
time to time, you should be aware of that.
The Nisga'a do not claim the whole Nass watershed. I made that point earlier.
I referred to the Nisga'a petition of 1908 that we discovered. The fact is that
the 1908 Nisga'a land committee included Gitanyow chiefs, as did the 1913 one.
However, the 1908 petition claims land in the Nass valley, about 140 miles, or
224 kilometres, in extent, which is all that is needed by themselves as hunting,
timber, and fishing ground. The entire length of the Nass watershed from Mill
Bay on the ocean at tidewaters to the headwaters is 384 kilometres. In other
words, the Nisga'a petition in no way includes the entire Nass watershed.
If it had even done what it said it did originally, the Calder case in 1968
would have had the Nisga'a petition as their evidence, rather than a reduced one
based on the Gitanyow saying that they had an overlap. If they felt strongly
about it, then why did they not put it in court? You can find that statement on
page 139 in Tribal Boundaries in the Nass Watershed.
The Gitanyow-Gitxsan border is at Surveyors Creek, about 224 kilometres from
tidewater. In other words, if you look on your map, just below Bowser Lake you
will see Surveyors Creek. That is the boundary between the Gitxsan and the
Therefore, the 1913 petition was wrong.
I will skip point 2. I want to save you some time. That was a statement made
by a Nisga'a representative to you Ottawa. You can read that yourself. The
evidence is extensive in Tribal Boundaries in the Nass Watershed and is included
around pages 210 and 212.
Tom Molloy, when he was before this committee, "there is a large overlap
with the Tsimshian nation as well as with the Tahltan, and agreements have been
reached by the Nisga'a and those two First Nations with respect to those
Tom Molloy was assigned to the Gitxsan and Gitanyow treaty tables prior to
negotiating with the Nisga'a. I briefed Mr. Molloy on issues and progress with
respect to overlap negotiations. He knew I was writing Tribal Boundaries in the
Nass Watershed, and was given the report in November 1995.
Tahltan leader Vernon Marion submitted a statement to the Supreme Court of
B.C. in 1987 that set out the Tahltan boundary with the Gitxsan in the north,
almost to the very top of the map. It is not a very large area.
That boundary corresponds with our northern boundary in the Nass and Skeena
watersheds. That information appears in detail in Appendix 1 of Tribal
Boundaries in the Nass Watershed, pages 255 to 257.
Tom Molloy knows that the Nisga'a claim was to the whole Nass watershed,
including Tahltan territory. How could he say in this statement that the Nisga'a
had signed an agreement with the Tahltan? There is a contradiction in the two
statements. He is simply wrong to suggest there is no Nisga'a overlap with the
Tahltan, Gitxsan and Gitanyow.
Moreover, how can the honourable Robert Nault say to you that "the
interests of the Nisga'a people and their neighbours have been carefully and
properly balanced," and that they have "involved the parties most
affected by the treaty"? This statement is blatantly wrong. The boundary
between the Nisga'a and the Gitanyow is at the Kinskuch and Kiteen Rivers. The
evidence in the appendix to this document is only two pages. This gives the rest
This map was given to us by the Nisga'a. It depicts where their house
territories end. It also shows in our language that they recognize that the
Gitanyow have territory where they say it is. This map was drawn by the Nisga'a
in 1984, when we started to go into court in Delgamuukw, and they tried to
determine how to come up with a way of proving whether or not they had land to
the head of the Nass River.
The Chairman: Mr. Sterritt, is that map known to Tom Molloy?
Mr. Sterritt: Yes.
The Chairman: Will you be hear tomorrow morning?
Mr. Sterritt: I am on an eight o'clock flight, but if I have to, I can stay.
The Chairman: It is your decision. The minister and Mr. Molloy will be
questioned on these subjects tomorrow.
Senator St. Germain: Possibly.
The Chairman: What do you mean, "possibly"? The minister and Mr.
Molloy will be here by fixed agreement at noon. The minister will be here for a
Senator St. Germain: We had discussions, but nothing was cast in stone.
The Chairman: Not at all. That is cast in stone. It always was. When we
invite a minister and we come to an agreement with the minister as to when he is
Senator St. Germain: You agreed; I did not.
The Chairman: You were advised by me that the appointment was a firm one. I
am astonished that you are doing this.
Senator St. Germain: That is right. You advised me, Mr. Chairman, of what you
were doing, and I advised you at the time, if you recall correctly, that we were
going to hear all witnesses properly, and that in the event that we would not be
able to get through the timetable these hearings would go into next week and we
would do clause-by-clause either at midweek or later into next week. That was
the agreement we had.
The Chairman: You are completely misunderstanding what we discussed. I said
to you that we would suspend whatever we were doing at 12:00 noon to hear the
minister. That was discussed at our steering committee. It may not have
registered, but the minister will only be available to us between 12:00 noon and
1:00 p.m. tomorrow.
Senator St. Germain: The minister has to be available to the committee. The
minister does not call the shots, Mr. Chairman. When I was a minister, I did not
call the shots. I responded to the requests of committees. I am sure you did
also when you were a minister.
The Chairman: We do not compel a minister to appear before this committee. He
does not have to appear. We have invited him to appear and we have established a
time for him to appear. You are getting a little bit offside with these
aggressive comments. I would like to allow the witness to continue.
I would ask the witness to complete his presentation, and then Senator St.
Germain and I can argue after all the evidence is in for the evening.
Mr. Sterritt: With regard to this map, it appeared in Tribal Boundaries in
the Nass Watershed on page 188. The evidence is there. It contains the relevant
information. This is the full map.
If I have to be here tomorrow morning, I would like to know because I will
have to change my flight.
The Chairman: Is there someone else who could present the map? The reason I
ask is that I intend to ask Mr. Molloy, whenever he appears tomorrow, "Are
you familiar with the map? This is what Neil Sterritt said in evidence. This is
what was in his brief."
If someone has possession of the map, I would be content. I certainly am not
asking you to stay, Mr. Sterritt.
Mr. Sterritt: We can make some arrangements. Either Mr. Skulsh or one of the
Gitanyow representatives can present the same issue.
I will just conclude this part and then begin my summary in a minute.
The boundary between the Nisga'a and Gitanyow is at the Kinskuch and Kiteen
Rivers. That is one third the way up the Nass River. Nisga'a claims above the
two rivers are incorrect and constitute an overlap, albeit an improper one.
There can be no Nisga'a boundary with the Gitxsan on the upper Nass because the
Nisga'a boundary is with the Gitanyow 130 kilometres downstream. In other words,
the Gitxsan territory is in the upper Nass. You have to travel another 130
In summary, there is not one of us Gitxsan people who are opposed to the
Nisga'a treaty. We are in favour of it. They have earned it. They have worked
very hard for it and they deserve it. They have represented themselves well and
are deserving of the first treaty in the modern era in British Columbia. Having
said that, the process is wrong with regard to the overlaps. It must be changed.
Once they had studied Tribal Boundaries in the Nass Watershed, after 1995 the
Nisga'a knew they could not prove a land entitlement north of the Kinskuch and
Kiteen Rivers. In the final agreement, the provincial and federal governments
gave the Nisga'a fee simple lands, and other benefits and privileges north of
the Kinskuch River over lands belonging to the Gitanyow and Gitxsan, which, if
Bill C-9 becomes law, will become constitutionally entrenched treaty rights.
The earlier debate about them being pushed back by a court case or some other
means by the Gitxsan or Gitanyow and then getting something somewhere else means
they have been rewarded for claiming our land. To flip this around, if the
Gitxsan at the head of the Nass claimed the watershed right to tidewater, it
would be equally ludicrous. However, that is the expectation created by the way
treaties are negotiated, at least in this part of the British Columbia.
Canada and B.C. have an obligation to bargain in good faith over treaty
entitlements. They should not encourage political or strategic opportunity in a
treaty so that the aboriginal nation at the treaty table gets benefits over its
neighbour's territory. Canada and B.C. have a legal, ethical and moral
obligation to suspend all rights and benefits ceded to the Nisga'a in Gitanyow
and Gitxsan territories.
There are crucial lessons to be learned for the Nisga'a treaty experience.
First, aboriginal nations must use proper evidence and research methods to prove
their boundaries where an overlap exists. The absence of standards is a flaw in
the B.C. Treaty Commission process that encourages a first-come, first-served
approach. Second, territorial overlaps must be resolved before a treaty is
concluded. Third, it is morally and legally wrong to sacrifice the land
entitlement of one or more nations to obtain a treaty with another nation.
Fourth, certainty, which is considered so important by government, is not
achieved when overlaps are left unresolved. Fifth -- and this is the biggest
flaw in federal policy and in the BCTC process -- a binding third-party process
is an absolute requirement when the aboriginal parties cannot resolve an overlap
themselves. Where there is no good faith and where there is political
opportunity, there needs to be a third party, and things should come to a halt
as was set out in the protocol between ourselves.
Concerning resolution, in the present circumstance, the resolution is to
sever off from signing of the treaty those parts of the territories that are
subject to the overlapping claims so that they may be resolved through evidence,
intertribal negotiations or third-party mediation.
This book written to be handed to the Nisga'a so that they would show us
where we are wrong. They have had it for five years. That was the purpose of the
book. We were not writing it to say, "This is the way it is." We said,
"Tell us where we are wrong." We have never been told.
I will not take you through the appendices; however, they include some
selected evidence, and they are before you now.
The Chairman: Thank you. I should like to ask you one question before I turn
to Senator St. Germain, and it is a speculative question. Given the strength
that you believe your evidence carries regarding your lands, why do you believe
that the federal government and the provincial government were prepared to go
ahead and conclude an agreement with the Nisga'a? Could you speculate with us
Mr. Sterritt: I think the real driving force was Glen Clark, a premier with
an ego who wanted to have the first treaty in British Columbia. He did not care
how it happened. I have tracked his comments. I have tracked the pressure that
was on the British Columbia negotiators at the Nisga'a table. I think that was
the driving force. Given that people took positions, like the Gitxsan and
others, we had a different model than what you are seeing, especially in the
face of Delgamuukw coming down when it did. It was probably a good thing to get
this treaty then and to do it, whatever it cost the neighbours. I think there is
something to that and a case can be made. I have written a lengthy newspaper
article or two, which I do not have here, that deal with those two issues.
The Chairman: Why would the federal government fall in with a scheme like
Mr. Sterritt: Well, it is part of that. The federal government wanted a
treaty that was consistent with treaties that had been signed for a long time.
Bear in mind that if the Delgamuukw test had been used when it came down in
1997, if it had been applied to the Nisga'a at that time or if they had used it,
they would have had to prove where their boundaries were. That would have proved
from this submission that the boundaries were one-third of where they should
have been -- in other words, no fee simples in our area. There probably would
have been serious question about wildlife management regimes and fishing regimes
further up the river, knowing that we were coming down the pipe.
The Chairman: To get the facts clear, have you settled your overlapping
claims with all other tribal communities?
Mr. Sterritt: In the Nass watershed, we have resolved the boundary with the
Tahltan. You see on your map where it says "Treaty Creek". That is a
treaty. There is a declaration in this document in your appendix. That was an
event that happened around the turn of the century. We resolved that. There are
some statements that Tom Molloy referred to that were contradictory, and the
current leader of the Tahltan is George Asp. He was the leader in 1977. He has
this book and has read it. If anyone wants to check that, they can talk to him.
The Chairman: So in the Nass River system, you have settled with everyone but
Mr. Sterritt: The Gitanyow is the other group that we would have to settle
with, and we have only a very small area at the very head of the river, which
flows south. There is a small area that belongs to the Gitxsan up in there. The
major areas in the north, our boundary with the Gitanyow now, were mentioned in
documents back in the 1890s. They were mentioned back in 1875. It appears here.
We know our boundary with the Gitanyow. We know our boundary with the Tahltan in
the Nass watershed.
The Chairman: Thank you very much.
Senator St. Germain: Thank you, gentlemen, for attending and making this
presentation. I have known Mr. Sterritt for several years, and I know he has
done a lot of work in this particular area.
What really concerns me is that, basically, aboriginal minority rights appear
to have been trampled on. I agree that there is no question that the Nisga'a
deserve an agreement. Where are the native leaders that represent the concerns
of aboriginals, people like Phil Fontaine and others? I find it very strange
that the Gitanyow and the Gitxsan both seem to be relegated to the backwaters.
There are senators here who I believe to be very sincere in their defence of
this, and they want us to rubberstamp this thing and just fire it through. One
said that we were nitpicking, and others said that it was just chicken manure
that we were trying to take apart an agreement. My contention from day one has
been that, if there is a problem with this, it is the fact that the adjoining
aboriginal people's situations have not been resolved. Why is it that you have
been neglected or relegated to the backwaters on these issues and they are not
taking issue with them? They seem to be shying away from it. Is it simply for
Mr. Sterritt: It is a bit of an historic issue, and I mean recent history.
After the Calder case in 1973, federal policy was established on resolving six
treaties at a time in Canada, one of which was in B.C. If you wanted to qualify
for land claims research funding to start you negotiations and your research
leading to land claims negotiations, you had to submit a map of what you thought
your territories were before you had actually done the research. Many tribal
groups in B.C. did their maps, but they made sure that they included a much
larger area than they might own to make sure they did not leave anything out,
and then they had the intention of going back later and doing the research.
When the Gitxsan did theirs in 1977 and presented it to the federal
government, we made every effort to have it as accurate as it could be, and in
almost every situation, when we did our detailed work, we moved it in. Of the
other tribal groups around B.C., the Gitanyow had done their research. They
probably have the best- documented land claim territory in North America, if not
the world. Very few other tribal groups in B.C. did the kind of work that we did
and that led up to the Delgamuukw case. The Tahltans were one of the groups that
did some very good work. So, the work was never done.
On the issue of overlap, if they do not have the information, they may just
get together and have a gentleman's agreement, which is what it appears the
federal and provincial negotiators would like to see done. "Get together
and resolve it; it must be easy." Not if you have elders who know where the
boundaries are and have lived on them and if there is documentary evidence
That is the situation generally in B.C., and that is why almost no one has
wrestled with boundaries to the extent that the Nisga'a, the Gitxsan, the
Gitanyow and the Tahltan have. That is why the summits and the UBCIC, the Union
of BC Indian Chiefs, and so on really are not on top of that, and they do not
want to interfere. That is part of the reason, in any event.
Senator St. Germain: Do you think Tom Molloy was in conflict by having
represented you people and the Gitxsan and the Gitanyow at the negotiating table
and then having moved over to the Nisga'a table?
Mr. Sterritt: I think he was to this extent. I asked him when he was at our
table about the policy on resolving overlaps, and he laid it out. He said that,
if in the opinion of the federal government the party at the table has made
every effort to resolve the overlap in good faith and has not been able to do
so, then the federal government will proceed. He was at our table. He then went
over there. My question is this: Who decides good faith? In this case, Tom
Molloy had a mandate to get a treaty in a hurry and he was the man who decided
good faith. To that extent, I think that if this was going to be done properly,
it had to go outside. Any conflict resolution process requires that. It is
absolutely ludicrous to expect aboriginal people to sit together when one has
the ear of both governments and the other is struggling to get to the table to
resolve it. It is ridiculous. From that point of view, he was in conflict, and
the federal policy was weak.
Senator St. Germain: With all due respect to the two professors who were
here, who wanted to avoid litigation, in the final analysis, they were saying
the only way that this will be resolved theoretically is through litigation on
your behalf and on behalf of the Gitanyow; is that not correct? Did you not
understand that as the eventual outcome, one which is very costly? Where would
you get your funding from? It would have to come from the federal government,
would it not?
Mr. Sterritt: We still owe money on Delgamuukw so it would not be easy.
The fact is there would be no need for litigation if this issue had been
dealt with properly in 1995, when this book was produced, or 1996 or 1997 or
1998 or 1999. It should have been dealt with by negotiation, with third-party
mediation or arbitration.
Senator St. Germain: We have here the Nisga'a territorial claim, Calder,
1968-73. That is on page 78 of BC Studies: The Nisga'a Treaty. My understanding
was that the 1913 petition was basically the same as the Calder claim. Was it
Mr. Sterritt: No.
Senator St. Germain: Was it larger, different, or what?
Mr. Sterritt: Let me refer you to Tribal Boundaries in the Nass Watershed. I
hope you have a copy in front of you.
Senator St. Germain: I do not have it with me.
Mr. Sterritt: If you look at pages 142 and 143, which are facing pages, you
see both the Nisga'a petition of 1913 and Exhibit 2 in Calder. The one in the
B.C. Studies book, Exhibit 2 in Calder, is the one on the left. The 1913
petition is the one on the right. You can see it goes up and includes Meziadin
Lake, whereas the Calder exhibit does not include Meziadin Lake.
Senator St. Germain: It goes to the tidal waters as well, does it not?
Mr. Sterritt: It goes almost to Surveyors Creek, which is the boundary
between ourselves and the Gitanyow. The reason for that is that the difference
between the two is Gitanyow territory. The Gitanyow were included in the 1913
petition that was here.
The Chairman: I should like to tell you, Mr. Sterritt, that a number of
senators do not have that book or the ability to refer to the document that you
have introduced here.
Mr. Sterritt: We have copies for you.
Senator St. Germain: If you look at the 1968-73 Calder claim, you will see a
claim twice as large. I have listened to both sides of this. I have spent time
with Glen Williams and the Gitanyow, and I have spoken to you and to others. You
are looking at a claim virtually twice as large as the original claim, virtually
encompassing the entire Nass River watershed. The implication has been made,
during my questioning of various people on this, that people were not prepared
to negotiate. I find that hard to believe. If this Calder claim was legitimate
-- and we have to give it credibility because it was a claim that went through
the courts and it basically deals with the Kinskuch River and the Kiteen River
-- why is it that there was not the possibility of coming to a resolution before
I can tell you one thing. If there is one reason and only one reason why this
bill should not go ahead, it is because of this, as far as I am concerned. That
is my personal view, for what it is worth.
The accusation is that people were not prepared to negotiate in good faith.
That is what the Nisga'a have told me about the other parties involved. What is
your reaction to that?
Mr. Sterritt: This book was written to put all the evidence in one place and
present it to the Nisga'a to show us where we are wrong. If they could show us
where we are wrong, we said we would withdraw our boundaries. We asked that same
question of the Nisga'a at that same moment. They did not respond.
We have evidence by the Nisga'a that the boundary is not there. Did we
negotiate in good faith? We were prepared to produce this and all our
genealogies to show whether we are related. We had all that. We brought it all.
We asked the Nisga'a for their genealogies and they did not produce them, and
have not to this day.
We had to do all that for Delgamuukw. We knew we were up against it when we
went into court on that case. We had all that evidence. We went to the table. We
laid out a process with the Nisga'a saying, "We have to do this, this, and
this. Let us start with the oral history. Never mind the white man's way or the
written documents. Let us do this and then that." We could never get past
that. If you look at the documentary record, the records of all those meetings,
we could not get past square one where they wanted to do sharing and
Senator St. Germain: The government is saying we should be listening to the
courts. The courts have directed that there be negotiations, in Delgamuukw and
also in Luuxhon, where the judge accused the government of sharp dealing and not
dealing properly with the Gitanyow.
Where do we go from here? We are supposed to be negotiating and yet these
negotiations never took place. What is your suggestion to us on how to help this
process to be expedited in a manner so that your rights will not be trumped?
Mr. Sterritt: You have to hive off the area that is in the so-called overlap
and go ahead with the rest of the treaty. They should get their treaty on
schedule, but you should hive off this area.
The Chairman: Senator Tkachuk is next. Senator St. Germain, you have had a
very good run.
Senator Tkachuk: I have a couple of questions.
Senator St. Germain: This is important, though, sir.
The Chairman: I recognize that this is your issue, so I have given you a very
Senator St. Germain: I have another question.
The Chairman: When you are in full flight, you do not know how long you are
Senator Tkachuk: I want to follow a little money here. You said something
interesting during your presentation about the question of the land that falls
under this agreement. With the resolution of this Nisga'a treaty, with the land
in dispute, if the boundaries are settled prior to this coming into effect,
there is no compensation to the Nisga'a. That is how I understand it. In other
words, it is not part of the treaty. Or is it? If the treaty is passed and then
you go into dispute and they lose, they get compensated under this agreement, as
far as I can tell.
Mr. Sterritt: That is right.
Senator Tkachuk: So they win both ways. If they win the court case, they get
the land. If they lose the court case, they get compensation for the land they
lost. We hear all kinds of numbers, and we have never come to an exact one. We
hear it is costing the governments anywhere from $350 million to $500 million.
How much do you think it would cost to compensate the Nisga'a if the agreement
passed and they lost the case?
Mr. Sterritt: I have no idea.
Senator Tkachuk: Who might know the answer to that question?
Mr. Sterritt: I do not know.
Senator Tkachuk: When Senator St. Germain asked why this agreement has been
moved forward so rapidly, you mentioned that perhaps the ego of former premier
Glen Clark was responsible, with the land disagreements not having been taken
into consideration at the time. Would it also be true that he would have wanted
this agreement passed, no matter what it would have cost the provincial
Mr. Sterritt: That is another question altogether. If you look at the fast
ferries and a few other examples, perhaps; I do not know.
Senator Tkachuk: It is circumstantial evidence.
Mr. Sterritt: It could be.
Senator Tkachuk: I will leave it at that.
Senator Chalifoux: It is interesting that you mention national leaders not
being here. I should like to recognize Marilyn Buffalo, the President of the
Native Women's Association of Canada, who is here.
Senator St. Germain: I did not say they were not here; I said the voices were
not being heard.
Senator Chalifoux: Would you give me an opportunity to speak? I have
thoroughly enjoyed your voice all evening, sir, but it is my turn now.
We all know that the Assembly of First Nations is not supported by all
aboriginal people. Do you support the Assembly of First Nations under the
leadership of Phil Fontaine?
Mr. Sterritt: I do.
Senator Chalifoux: Has the AFN had any consultation with you or have you had
meetings with them?
Mr. Sterritt: I do not know whether Mr. Fontaine met with our chief
negotiator. I know that Barbara Clifton is in Ottawa with Marilyn Buffalo. They
may have spoken about these issues. I have not had any discussions with our
Senator Chalifoux: I have been speaking to some people in the other place. I
asked them why this situation has not been resolved before. I was told that it
is because you cannot get your act together. You have proven them wrong by your
evidence tonight. I should like to thank you for that evidence.
Mr. Sterritt: Thank you very much.
Senator Chalifoux: Do you support the Nisga'a treaty?
Mr. Sterritt: I do support the Nisga'a treaty. They have worked long and hard
for it and they deserve it. The issue of boundaries needs to be dealt with. In
our part of northwestern B.C. they must be dealt with.
Senator Andreychuk: Some honourable senators here have said that native
rights should not to be defined by non-natives, and I agree with that. Do you
agree with that? I am sure you do. It follows, then, that if the Nisga'a treaty
goes forward, it will have been federal officials, therefore non-natives, who
have said what your rights are to particular pieces of land.
Mr. Sterritt: There are two issues. First, we need to sit down and get beyond
the rhetoric. I have been involved in these issues now since 1973 and very
heavily involved in the constitutional talks. I played a major role in those.
We had to sharpen our pencils and our thoughts as we went from 1982, 1983,
1987 and 1992 because more people were asking questions and more people were
challenging us. If we could have moved as fast as we could, in 1982, it might
have been a great year. In any event, we had to be prepared to explain more to
those people who were affected by what we were doing.
There cannot be a pig in a poke. We must be clear on what it is we are after
and where we are going. We must take the time to educate the community around us
in terms of what the issues are and the implications for them. The Nisga'a have
done an excellent job of that. Their PR has been excellent. Other tribal groups
have done the same. We deliberately set out to do that even back in the 1970s,
to go to chambers of commerce and talk about our issues.
At the same time, there are different models and the Nisga'a model is one. We
have another. We would like to advance it as Gitxsan people, and I believe so do
the Gitanyow and a few others. We must explain what the model is or no one will
negotiate with us. The negotiators are not prepared to talk to us at this time
on that model. There is a responsibility on both sides to find out what is
happening. There is a responsibility on our side to be clear about what it is we
are doing and what we want. In the end, you will be approving what we do and you
will not approve it if you do not understand it.
Senator Grafstein: You have a governance model somewhat different from the
Nisga'a. We heard that earlier. What is the timing for the next case? In other
words, if the Nisga'a treaty is approved or deferred or whatever in some form,
are you next?
Mr. Sterritt: When we entered into negotiations in 1994, we moved along
quickly. We got to stage four quickly. As a result of the effort naturally and
rightfully going to the Nisga'a, and because we were not getting where we wanted
to at the table, we decided to go back and take Delgamuukw to completion in the
Supreme Court of Canada.
At this point in time we would have to take some time to decide whether we
want to get there. There are several groups who are at the table and ready to
sign, for example, in the Sechelt area. There is not a great desire to proceed
at this time by most of the tribal groups in British Columbia. They are standing
Senator Grafstein: Why?
Mr. Sterritt: The position of the provincial and federal negotiators is very
fixed. You could ask the Gitanyow when they come up here why they may not wish
to. They had an offer that was totally unrealistic and not what they wanted.
They can explain that better than I.
Senator St. Germain: In a nutshell, could you see yourself negotiating a deal
with the overlap situation in existence?
Mr. Sterritt: The issue, once again, is the question of where the boundaries
are. Let us say that you sent the Nisga'a and us out of the room for five hours
or five days and we came back in at the end and could not agree, then what you
would have to do is send someone out with the evidence. The Nisga'a have some
documents, maps and other reports that have been written. We have these. That
third party would have to take all of the evidence and critique theirs and ours.
That third party would have to say where the boundary is.
Senator Lawson: The minister appeared before the committee on February 16. On
the issue of overlap, he said that he knew that we would want to be assured that
the aboriginal treaty rights of other aboriginal peoples would not be negatively
affected by the treaty. The issue of overlap is one we deal with in British
Columbia and elsewhere across the country. There are particular provisions in
this treaty to ensure that the aboriginal and treaty rights of neighbouring
First Nations are not affected.
I thought you would want to know that you are not affected. That is what the
minister says. Just to make an observation, I am a poor simple layman, just a
truck driver, but some learned professors came to tell us that everything in
this treaty garden is lovely; they do not have a single hectare at risk. The
minister does not have a single hectare at risk, and they tell us that you do
not have a problem.
I happen to believe the people who once were standing on land and who now say
that they are standing on air space because the land is gone because somebody
took it. I think you are right. If I had to have a negotiator, I would want the
Nisga'a negotiators. They are the best at what they do.
I would want to have this dealt with before the treaty was approved. Take it
and set it aside and have it resolved. The government has a responsibility to do
that. You simply cannot trample other people's rights in an attempt to protect
the rights of some.
Mr. Sterritt: Those statements under those sections of the Nisga'a agreement
could well be true. However, once you have been hit on the head a few times -- I
started at this process in 1973 or 1974 -- the examples I gave you show there is
no good faith. Let us assume we have to invoke that. How do we know that the
governments or the Nisga'a will not use all of their resources to prevent us
from resolving that issue in a way that is proper? I have nothing to tell me
that because there has been no good faith thus far.
Senator Lawson: You would have to rely on what happens in most cases: a third
party tribunal -- men and women of integrity, maybe a committee of the Senate,
but people of integrity who would review the evidence fairly and make a decision
that people would agree to be bound by. I think both sides would do that.
However, we cannot simply, in a rush to get it done, say that we happen to
trample on a few small tribes into the process but, by God, we have a completed
The Chairman: Would the witnesses from the Gitanyow Hereditary Chiefs please
Please proceed with your presentation.
Mr. Glen Williams, Chief Negotiator, Gitanyow Hereditary Chiefs: This is
approximately the fourth time that we have appeared before a parliamentary
committee studying the Nisga'a agreement. We have basically said the same things
about the Nisga'a agreement each time and how it impacts the people and our
Honourable senators, you have probably heard over the last few weeks from
government representatives, from negotiators, from lawyers, from academics that
we are protected by paragraph 33 of the Nisga'a Final Agreement. Witnesses have
probably talked to you about paragraph 34 as well. They have probably talked to
you about paragraph 35 of the Nisga'a Final Agreement.
Before I start, I wish to state for the record on behalf of our people that
the evidence led by Mr. Sterritt, referring to Tribal Boundaries in the Nass
Watershed and the BC Studies booklet, the maps referred to, the chapters in the
book dealing with what Nisga'a people and elders have said, the history of the
Gitanyow and the Gitxsan, is all correct. We agree with Mr. Sterritt. We agree
to where those boundaries are.
I should like to show you who we are. I wish to take you into our territory.
There is now a map before you. The map depicts the territory in black and you
can see the Nass watershed coming down. Above it is the Meziadin River. On the
side are totem poles, and those poles are still standing in our communities. The
pole that is now being pointed out is the one that belongs to our house group.
That pole is about a grizzly bear that is referred to in our oral history. The
grizzly bear is the crest for our particular house. It was in 1994 that we
erected that pole. It was at great cost to our house group to publicly show to
other Gitxsan people, the people in the territory, that we still exist and that
we are still related and connected to a particular territory. That crest
originates from our territory.
If you look near the boundary of Luuxhon, that is the Kinskuch River to which
Neil Sterritt referred. Next to it is another totem pole with a Kingfisher
attached. That points in Luuxhon oral history right to the boundary at Kinskuch,
which is about 800 metres below the Kinskuch River. Those poles stand today in
our community. We still practice our systems. We still have laws that connect us
to those particular territories.
The Chairman: Mr. Williams, when were the poles erected?
Mr. Williams: Some were erected in the last decade and some in the last few
years. Some were erected over 100 years ago.
The Chairman: Are the ones you have referred to now old poles that have been
there for 100 years or are they relatively new?
Mr. Williams: Some are over 100 years old and some are more recent. They were
erected in the last four to five years.
In the Meziadin area, those two poles belong to the House of `Wiilitsxw. They
tell the story about how `Wiilitsxw was involved in the war at Meziadin and
those poles tell the oral history of how the Gitanyow and `Wiilitsxw had a war
with the northern tribes and how they acquired that particular territory in
about 1861. That history is in travel boundaries in the Gitanyow chapter.
What I am telling you, senators, is that our history, our system, our house
system, our laws, our hereditary names are still strongly in place today. We are
Gitxsan people. In Delgamuukw they talk about nature, content and the importance
of oral history. We are no different from our neighbours the Gitxsan. We are
I will now turn to how earlier agreements, the Nisga'a Comprehensive Land
Claims Interim Protection Measures Agreement of 1992, the Agreement-in-Principle
of 1996, and the Nisga'a Final Agreement have already adversely impacted our
people. In our brief and the appendices we refer to some of the impacts on our
people. With regard to the fishery component, as shown on page 7 of our brief,
the Nisga'a Final Agreement grants the Nisga'a a fishery management regime over
the entire Nass watershed, which encompasses 84 per cent of our territory. With
regard to wildlife, the situation is basically the same. The Nisga'a are on the
verge of having newly created, constitutionally protected treaty rights on our
territory in wildlife and in the fishery. The Nisga'a and governments have
studied the highest and best use of lands in our territory. They have identified
backcountry recreation tenures that are part of the Nisga'a Final Agreement.
They have identified the five highest and best-use lands to be converted into
fee simples in our territory. They will be granted angling licences for all the
major rivers. Areas that currently have our aboriginal names will soon have
What does that do to our system? As I said, our system is very strong. We
still use the territories right on the boundary. They produce salmon for our
people and our house groups. We have prime hunting sites in those areas. Our
people have laws that govern those territories. We want to continue to use those
This bill will affect our hereditary system in that there will now be
constitutionally protected Nisga'a treaty rights overlapping our undefined
Gitanyow rights. The Gitxsan system and laws have been in place for thousands of
years. Our chiefs have said numerous times that we will not move off our
Whose rights will take precedence on that ground? Lawyers and negotiators can
hide behind paragraph 33, but when it comes right down to it, whose rights will
apply first? Will the newly created, converted, modified Nisga'a rights override
our rights? We will not move over. We also have constitutionally protected
aboriginal rights on that territory. We have not moved over on other agreements.
That is the problem you will create if you pass this bill.
We have been in negotiations since 1993. The Nisga'a have been granted rights
to the fishery, wildlife, highest and best-use lands, and all the prime economic
opportunities in our territory. Paragraph 33 states that you can negotiate with
another group, but what is left for us with which to enter into an agreement
with both governments? As our chiefs have said, we are negotiating for crumbs in
our own territory.
At the end of November, we received a cash and land offer from both
governments. We were offered 20,000 hectares and $13.5 million to give up our
rights. That offer was designed deliberately by both governments not to touch
the Nisga'a Final Agreement because all parties to the Nisga'a Final Agreement
were bound to change not a word, a comma or a period in it. Shortly after we
received the offer we asked for modifications, and negotiators from both
governments told us that they could not touch the Nisga'a Final Agreement.
You have been told about paragraph 35. I listened to the professors here this
evening. They have the remedy and this is it. Paragraph 34 talks about
litigation. It says that we must prove our rights in court. We initiated a court
action in March of 1998. Shortly thereafter, we were viciously attacked by both
governments. They tried to strike our action from the courts. They did that
numerous times, attempting to wear us down. They knew that we did not have the
resources to sustain a court action. That was expensive for us, but the remedy
provided in this country for the resolution of overlaps is to go to court. If
you have the resources, you can fight all the way to the Supreme Court of
That is why we have offered some solutions for the Gitanyow people and a way
out for Canada. We agree with what Mr. Sterritt said this evening, that our
neighbours the Nisga'a should have the treaty in their own territory. Former
Gitanyow leaders are on record saying that. I have said it and I will say it
again. They have worked hard for that agreement, but we want our area carved out
of the agreement.
As we propose in our submission at page 9, if you are so confident of
paragraphs 33, 34 and 35, why do you not include them in Bill C-9 as you have
done other things? Amend the bill to include those paragraphs. If you believe
the briefings you have had, add on another clause: The approving and ratifying
of the Nisga'a Final Agreement will not hold us nor bar us from negotiating
freely in our own territory. That is the second amendment that we are seeking.
As Mr. Sterritt said, we agree with carving off or suspending those chapters,
those provisions, that have an impact on our territory. We provided you language
on page 10 of our brief, in addition to clause 27 of Bill C-9.
As a house of second thought on legislation in this country, we seek your
help so that we can have calm and certainty in our territory. This is what these
agreements are all about; we have heard many times about the need for certainty.
We want certainty as well. We are asking you to support us in adding these
suggested amendments to clause 27. We have crafted the language for you, to make
it easier for you.
The Nisga'a people may have told you that their neighbours do not want you to
change anything in Bill C-9, but it is the prerogative of the Senate of Canada
to do that themselves. We appeal to you to add those amendments, to support us
and to take immediate action to do that. If you cannot do that, then there
should be a litigation fund to support us in advancing our claim and to support
those individuals who may be charged on the ground in exercising the
constitutionally protected rights that they have always exercised, which our
forefathers have exercised for centuries.
In the implementation of this bill, a Nisga'a fishing plan will be developed.
It is being developed as we speak, and we have seen the initial draft. It talks
about the entire Nass area. That will create uncertainty and confusion on the
ground. I have talked to the fishery managers. They are scratching their heads.
We asked them: Whose rights will take priority in our territory come June when
the fish start coming? Whose rights will play out? There were about 10 people
there. They all turned to each other. They had no answers to our questions.
In our last discussion, they told us that they are seeking a legal opinion on
whether to uphold the constitutionally protected treaty rights of the Nisga'a or
the undefined rights of the Gitanyow.
We left you some evidence as well. We cited what will happen to the wildlife
because of the continuing uncertainty that will occur in our territory. The B.C.
government has already flagged the concerns. That evidence is provided in the
appendices regarding the B.C. government, the wildlife branch thereof; they have
serious concerns about operational management on the ground.
I refer you also to paragraph 34. I ask our counsel to give you a brief
summary of what the judge said in our case. Our case is called the Luuxhon case,
named after one of our hereditary chiefs who live right on the boundary.
Chief Peter Hutchins, Legal Advisor, Gitanyow Hereditary Chiefs: Honourable
senators, the Luuxhon case is still before the courts, presently on appeal to
the Court of Appeal of British Columbia.
Our brief contains a section dealing with the systemic or structural flaws in
the modern treaty process. It is very important for this committee to see beyond
the immediate problem of the Nisga'a treaty and the particular problems of the
neighbours of the Nisga'a, and see how this reflects on what is happening across
the country. Frankly, it is a matter of national importance if indeed this
country wants to continue, honourably, a treaty process and putting into place
secure treaty arrangements with the First Nations and aboriginal peoples of this
There is a danger for the modern treaty process in what is happening. It is
important for you to bear in mind what the courts are saying about this and, in
particular, what the courts are saying about negotiations.
The courts are not just saying to go off and negotiate, that it is better to
negotiate than to litigate. The courts are also saying now, very interestingly,
that there is an appropriate conduct in those negotiations. The Luuxhon case is
the most interesting of these cases. The courts are also directing both the
Crown and aboriginal peoples as to the appropriate conduct. They are going
behind the process and saying how that process should be conducted.
That information is absolutely essential. You cannot just send a group of
aboriginals or a First Nation into a process with the Crown. One does not have
to be a rocket scientist to know that there is no level playing field there.
Despite some statements these days that aboriginal peoples are well equipped
with many resources and competent counsel -- and I will not comment on that --
the truth is they will never have equivalent resources.
There are other serious disadvantages suffered by First Nations in the
negotiations. An appropriate standard of conduct in those negotiations is
necessary. The courts are beginning to say that at least there should be a
binding duty on the Crown to negotiate in good faith.
Two cases are now before the courts. In the Federal Court of Canada, the
justice in the Nunavik Inuit v. Canada case, which dealt with overlap and with
Canada's conduct of treaty negotiations with Nunavik Inuit who reside in Quebec
but who have territories into northern Labrador, declared that there is a
legally enforceable duty on the Crown to negotiate in good faith. That was not
appealed by Canada so it is a final judgment of the Federal Court of Canada.
As Mr. Williams mentioned, the Gitanyow also filed in the British Columbia
courts an action commonly known as Luuxhon, addressing the same question: Does
the Crown in its two aspects, federal and provincial, have a duty to negotiate
with First Nations aboriginal peoples in good faith once they have agreed to
enter into a treaty process?
In that case, Justice Williamson at first instance said, yes, the Crown does.
As I say, that judgment has been appealed by both Canada and British Columbia. I
do not know what the minister and the officials gave have been saying to you
about how they conduct treaty negotiations. I can tell you, being right in the
heat of preparing for that appeal and answering the factums of the two
governments, that the governments are arguing strenuously that there is no
legally binding duty to negotiate in good faith. It is all very political and
We have the final decision, of course, and that case is an appeal. It is
interesting that the courts are not just saying, as the Chief Justice said in
Delgamuukw, that it is preferable to negotiate than to litigate. They are now
going the next step, asking: How should those negotiations be conducted? That is
absolutely essential. Otherwise, my experience is -- anybody who has worked in
this area has the experience, and the Nisga'a of course have the experience --
that one spends many grinding years expending huge amounts of money and
resources to negotiate a reasonable and equitable treaty. It is not easy. It is
very wearing, and at the very least there should be some rules of the game. That
is what the Gitanyow are trying to establish through the Luuxhom case.
There has been some discussion here about First Nations against First Nation,
internal fights. There are differences, of course. The Luuxhon case in the
British Columbia courts is a case brought against the Government of Canada and
the Government of British Columbia. It is a case seeking declaratory relief --
seeking directions from the court as to the duties on those two Crowns.
Is there a duty to negotiate in good faith? That is the first declaration
that is before the courts they have dealt with. A second phase of that case, a
phase that is not yet before the courts, asks: If there is a duty to negotiate
in good faith, have the Crowns breached that duty in concluding a treaty with
the Nisga'a? Have they breached their duty toward the Gitanyow in concluding the
treaty they have with the Nisga'a? That has not been heard by the court and will
not be for some time.
That is what is happening in the Gitanyow specific cases. The Nunavik Inuit
case that I described is the same thing. It was not a case brought against other
Inuit, other aboriginal peoples. It was a case asking the court for directions
as to the duties on the Crown.
The brief also suggests what we consider to be practical solutions. We would
like to have some time to go over that with you, and specific amendments that
Mr. Williams has mentioned. The brief also asks this committee to give specific
direction to the Government of Canada in terms of what we perceive to be its
undertakings and its commitments in the very language of the Nisga'a treaty.
This is very important because there we will be talking about not amending the
Nisga'a treaty but giving the non-derogation language a specific and real
I should have disclosed at the outset that I do act as counsel in the Luuxhon
proceedings or in other cases before the courts. Since we have raised the issue
in the brief -- and I hope to be able to address it briefly -- I was also
involved as one of the counsel in the negotiations of the James Bay northern
Quebec agreement in the mid-1970s.
We bring that to the committee's attention as a possible -- not perfect, for
nothing is perfect -- interesting precedent and model for resolving aboriginal
overlapping claims. It is a model that has been on the books and has been the
law of Canada for 25 years.
I sometimes scratch my head when I hear people in British Columbia asking,
for example: How can we possibly resolve these overlap issues? It is all so
complex and difficult. Staring us in the face is a concluded treaty, initially
involving two aboriginal peoples and then a third aboriginal people, with
substantial overlaps. It was worked out. We would like to have the opportunity
just to point you to some of that material.
Perhaps this is an appropriate moment to break. I hope we have tantalized you
sufficiently to come back tomorrow and fill it in.
The Chairman: I would like to ask you, Mr. Williams, are you available
Mr. Williams: Early in the morning.
The Chairman: How early is early.
Mr. Williams: 9:00 a.m.
The Chairman: We will start with you at nine. I hope you can wind up your
presentation within about 15 minutes of 9:00 a.m., to allow an opportunity for
senators to ask some questions. The evidence you have given us this evening has
stimulated some real interest.
Mr. Williams: We have basically finished our presentation; we will need
perhaps just a few more minutes.
The Chairman: Most counsel welcome the opportunity to review their submission
and have another hearing, and I am sure you do too, Mr. Hutchins.
We will commence with you at 9:00 a.m., and you will fill the space that was
vacated by Professor Monaghan. We will not be behind schedule.
The committee adjourned.