Proceedings of the Standing Senate Committee on
Issue 11 - Evidence - February 15, 2012
OTTAWA, Wednesday, February 15, 2012
The Standing Senate Committee on Aboriginal Peoples, to which was
referred Bill S-6, An Act respecting the election and term of office of
chiefs and councilors of certain First Nations and the composition of
council of those First Nations, met this day at 6:52 p.m. to give
consideration to the bill; and to examine and report on the federal
government's constitutional, treaty, political and legal responsibilities to
First Nations, Inuit and Metis peoples, and on other matters generally
relating to the Aboriginal Peoples of Canada (topic: status of the British
Columbia treaty process).
Senator Lillian Eva Dyck (Deputy Chair) in the chair.
The Deputy Chair: Good evening. I would like to welcome all
honourable senators and members the public who are watching this meeting of
the Standing Senate Committee on Aboriginal Peoples on CPAC or on the web.
I am Senator Lillian Dyck, from Saskatchewan, and I am the deputy chair
of the committee.
The mandate of this committee is to examine legislation and matters
relating to the Aboriginal peoples of Canada generally. Today we will be
hearing from witnesses on two topics. First, we will be starting our
consideration of Bill S- 6, an act respecting the election and term of
office of chiefs and councillors of certain First Nations and the
composition of council of those First Nations. Second, we will be continuing
our study on the status of the British Columbia treaty process.
Before hearing from our witnesses, I would first like to introduce the
members of the committee who are present this evening. They are Senator Nick
Sibbeston from the Northwest Territories, Senator Sandra Lovelace Nicholas
from New Brunswick, Senator Charlie Watt from Nunavik, Senator Salma
Ataullahjan from Ontario, Senator Nancy Greene Raine from British Columbia,
Senator Dennis Patterson from Nunavut and Senator Don Meredith from Ontario.
We will begin our meeting this evening with Bill S-6. The Honourable John
Duncan, Minister of Aboriginal Affairs and Northern Development, will offer
us a presentation on the content of the bill. With Minister Duncan are his
officials who will assist in responding to questions from senators. They
are: from Aboriginal Affairs and Northern Development Canada, Brenda Kustra,
Director General, Governance Branch, Regional Operations Sector; and from
the Department of Justice, Tom Vincent, counsel.
I would like to welcome our first witness, the Honourable John Duncan.
Hon. John Duncan, P.C., M.P., Minister of Aboriginal Affairs and
Northern Development, Minister of the Canadian Economic Development Agency
and Federal Interlocutor for Métis and Non-Status Indians: Thank you for
the invitation to appear before your committee. I would like to begin by
acknowledging the work that this committee has undertaken in the area of
First Nation elections. Your 2010 report, and in particular the
recommendation for my department to work with interested First Nations
organizations, set the stage for collective efforts, the result of which is
the bill before you today. The First Nations elections act is generated
within the spirit of true collaboration to address the weakness of the
election provisions that are found in the Indian Act. It might be
instructive to indicate that there are currently 240 First Nations that
operate their elections under the Indian Act, 341 that are under what is
commonly called custom code or community code, and 36 First Nations that are
self-governing. A good number, 240 of 617, are currently under the Indian
Collaboration on developing this bill took place over a number of years.
It involved many leaders from respected First Nation organizations,
primarily in Manitoba and the Atlantic region. It was supported by the
federal government. It was reinforced by the work of this committee on First
Nation elections in 2009 and 2010, and it reached into First Nation
I would like to highlight the contribution of the two First Nation
organizations at the centre of this collaboration: the Atlantic Policy
Congress of First Nations Chiefs and the Assembly of Manitoba Chiefs. With
the support of my department, these organizations propelled the initiative
that has led to the First Nations elections act.
One could ask what the changes are that make Bill S-6 a vast improvement
over the way elections are held under the Indian Act. First, members of band
councils will hold office for four years instead of the two years set out in
the Indian Act. Doubling the length of the mandate of band councils is a
significant advance. As a result of this change, First Nation governments
will be in a much better position to carry out long-term plans, take action
on important priorities and ensure that long-awaited progress on critical
issues is achieved.
Second, Bill S-6 will enable groups of First Nations to line up their
terms of office so they can hold their elections on the same day.
Synchronizing their election days means that First Nation communities in the
same region or province will have, for four-year periods, stable leadership
working in collaboration with one another and negotiating with other levels
of government. This kind of coherent, logical setup is simply not possible
under the provisions of the Indian Act election system.
Third, Bill S-6 clearly defines election offences and outlines penalties
similar to those found in the Canada Elections Act. In First Nations
elections held under the Indian Act, allegations of corrupt practices, such
as vote buying, are one of the principal grounds put forward in election
appeals. Unfortunately, no legal deterrent to such practices exists because
the Indian Act does not outline any penalties. By having these activities
clearly defined and by attaching penalties, Bill S-6 will act as a strong
Fourth, Bill S-6 shifts appeals of First Nations elections from my office
to federal and provincial courts, the same place where disputes that arise
from provincial and federal elections are decided. This shift will not only
end ministerial oversight and decision making in the appeals process but
will also bring enhanced rigour and transparency to the process. It will
also discourage frivolous allegations that sometimes place First Nation
governments under dark clouds of uncertainty and in some cases suspicion for
extended periods of time. They can be completely spurious.
Fifth, Bill S-6 brings greater rigour to the nomination of candidates. In
particular, the bill prohibits individuals from being nominated as a
candidate for both chief and councillor in the same election. The bill also
limits the number of candidates any one person can nominate and requires
that nominees accept their nomination before they actually become
candidates. Under the Indian Act, these circumstances — single candidates
for multiple offices, candidates who are nominated but have no desire to
run, candidates who are nominated to run and do not know it — are not only
possible but actually occur.
At this point, I should make clear that the election system offered under
this bill is optional. Along with the First Nations leaders who drove this
initiative, I believe Bill S-6 presents a vast improvement over the Indian
Act. Nevertheless, First Nations will decide for themselves whether the
system under the bill represents a better alternative for the election of
their leaders than the current Indian Act system or their own custom
The benefits of the First Nation elections act in fact go well beyond the
establishment of a smoothly functioning electoral process. Bill S-6 provides
the framework for politically stable First Nations governments.
Madam Chair, I would also like to clear up four concerns that have been
raised about this bill since its introduction in December. These comments
might save us some time by addressing questions members of the committee
might have with regard to the bill.
The first is the concern regarding ministerial power. Clause 3 provides
me, as minister, with the power to bring a First Nation under this
legislation if I am satisfied that a protracted leadership dispute has
significantly compromised governance of that First Nation. The minister is
currently authorized under the Indian Act to order a First Nation to hold an
election under that act. This authority has only been exercised three times
in the last 10 years for the purposes of solving extended community
governance disputes and was done so only after all other reasonable efforts
to reach a resolution within the community had been exhausted.
I also want to make clear that Bill S-6 does not give the minister any
additional powers to order the holding of a legislated election in a First
Nation over those powers found in the Indian Act. In fact, the First Nations
elections act makes explicit the conditions that must exist for the minister
to exercise any powers of intervention.
The second concern centres on random draws, which will be used to break
ties and determine elected candidates in a fair and expeditious manner. Some
may suggest that by-elections are a more appropriate way to break tie votes
between one or more candidates. While ties are more common in First Nation
elections than in provincial, territorial and federal elections,
by-elections are costly alternatives that force First Nations into another
election that must last an amount of time to allow for mail-in ballots to be
cast and counted. This delay may not seem like much to federal candidates
and people in federal ridings, but it may prevent First Nation governments
from taking immediate steps on important matters without a full complement
of elected leaders.
The third concern surrounds election appeals. As I am sure all committee
members know, our courts are well equipped to decide disputes that arise
from federal, provincial and municipal elections, and are therefore ideally
positioned to deal with appeals related to First Nations elections. Many
First Nations that hold elections under community-based systems or custom
election codes refer disputes to the courts, either when their codes
identify the courts as the appeal mechanism or when community resolution
mechanisms are unable to resolve disputes to the satisfaction of all
parties. As I said earlier, election appeals cause uncertainty in First
Nation governments. Given the potential for this negative effect, the
process for engaging an appeal will benefit from having the rigour that the
courts require of any action.
The final concern centres on the bill's opt-in and opt-out clauses. A
First Nation moving from holding its elections under the Indian Act to
holding them under Bill S-6 is not making a fundamental change in how it
elects its leaders. For this reason, a band council resolution is an
appropriate vehicle to make the change. Of course, many First Nations
leaders will engage their communities in discussing such a move before
making the final decision and adopting the band council resolution to this
If a First Nation wishes to withdraw from Bill S-6 at a later time, it
must first develop its own community election code. In this context,
fundamental changes could be brought to how leadership selection is made.
Examples include mandating additional qualifications for candidates,
altering band council frameworks to include proportional representation for
families, clans or elders, and instituting additional criteria to govern the
removal from office of band officials. Therefore, it makes sense for Bill
S-6 to require that these fundamental changes receive the support of the
community as a whole.
In closing, Madam Chair, the approach to this initiative is a creative
and collaborative way in which the government and our First Nation partners
have developed a sound alternative to the Indian Act. If we are committed to
making the most of this historic period of the modern relationship between
the Crown and First Nations, I urge committee members to adopt the bill.
The Deputy Chair: Thank you, Minister Duncan.
We have a list of senators who wish to ask questions. Before we begin
with Senator Sibbeston, I would like to ask you a very general question.
You were indicating to us that 240 First Nations hold elections under the
Indian Act, 341 go via the custom code, 36 under self-government, and I
believe there are 10 or more with a traditional or hereditary system which
you did not mention tonight; so there are already at least four systems of
elections and this bill would create a fifth system. Does this create
confusion at the individual First Nation level? I know of a couple of
examples, which I will not name, where there are appeals. They will say, for
instance, that the hereditary chief is challenging the chief who has been
elected under either the Indian Act or a custom code. Do you think that
offering another option will make the matter more confusing? Why would we
add a fifth system when we already have four?
Mr. Duncan: The primary target of the fifth system, as you have
described it, which is Bill S-6, would be the 240 First Nations that are
operating under the Indian Act. That was the presumption that drove the
I do not think there would be confusion for those First Nations. There is
still a very familiar electoral process; it just happens less often. I like
that it takes my ministerial power away and gives it to an arm's length
body, which is the courts.
The Deputy Chair: What would be the advantage to those First
Nations who are under the Indian Act going to Bill S-6 versus going the
custom code method? Why would they not just go to the custom code and
introduce the same sort of provisions that you have outlined in Bill S-6?
Mr. Duncan: It is not really for me to illustrate that. Every
First Nation would probably have a different set of constraints or reasons.
First Nations have had the choice to go to custom code for a long time, and
240 have chosen to stay under the Indian Act. Elections under Bill S-6 would
be more familiar to those 240 than custom code because it takes quite a bit
of work to create a custom code election.
As to whether there are technical reasons beyond that, I do not think so.
It is just a choice for the First Nations.
Senator Sibbeston: Minister, I commend you and your department for
bringing forth this bill. I see it as an incremental step forward. I
certainly do not feel that it is the whole package, as it were.
Our Senate committee studied the matter of First Nations elections fairly
thoroughly. We heard many witnesses. There was a general desire to see
changes made. One of the big aspects of interest was having some kind of a
commission to deal with elections and appeals therefrom.
While I think it is a positive step to have the courts deal with appeals,
the witnesses that we heard, particularly the lawyers who have had many
years of experience in this area, said that the Federal Court system was
cumbersome, that judges did not have a great deal of knowledge of First
Nations and they saw it as a bit of a bother, or were not really
enthusiastic to deal with the issues. While they did the job, they seemed to
feel that it was a matter that could be dealt with much better by a body
like a board.
While I commend you for bringing forth this legislation, are you open to
making further incremental improvements in the future so that eventually we
could have an established electoral and appeals commission to deal with all
the elections and appeals?
Mr. Duncan: You are speaking beyond Bill S-6 and including all
Senator Sibbeston: Yes.
Mr. Duncan: The reference to the courts that we currently have
would still happen with a commission. They would not have ultimate
authority. It would still very often end up referred to the courts. That has
to be taken into account.
That would be establishing another institution, another bureaucracy,
which is another cost. There are significant costs to do that. How much
would it be utilized given that most elections are run quite appropriately?
It would be nice for me to just say that I am open but, on the other
hand, I am very concerned about setting up another institution. We have many
institutions, and one may wonder how much some of them actually accomplish.
Having been around Parliament for about 16 years now, I am aware of several
that would fall into that category.
It is a concern. I do not think it is appropriate for Bill S-6. I would
be foolish to slam the door on the broader view that you are talking about.
Senator Sibbeston: I think it is generally recognized that where
First Nations have self-government, they of course have all of the powers to
run their elections, and the next best thing is to have their own custom
adoption provisions rather than having to come under this act or the old
Indian Act. However, department officials and First Nations who appeared
before us said there were limited resources to help First Nations achieve
their own custom elections.
This is not really a question related to this bill but more a
departmental, policy and administrative one. Would your department be open
to providing more resources in the form of personnel and money so that First
Nations can develop their own custom election provisions? That desire has
been expressed to us.
Mr. Duncan: I do not know our current practice. Ms. Kustra could
speak to this.
Brenda Kustra, Director General, Governance Branch, Regional
Operations Sector, Aboriginal Affairs and Northern Development Canada:
Thank you very much for that question, Senator Sibbeston.
The current practice in the Department of Aboriginal Affairs and Northern
Development is to provide some financial support to First Nations who are
interested in moving out of the Indian Act into a community custom or a
community election system.
We also conduct workshops and information sessions with First Nations who
are interested in moving into community custom to share best practices from
other custom election codes that we are aware of. First Nations who are in
this process also call on the department for advice and referral to other
First Nations who may have developed similar kinds of systems in their
election code. We do provide a fair bit of support to communities who are
interested in pursuing a community custom code.
Senator Ataullahjan: Thank you, Minister Duncan, for your
presentation. Would you tell us about the types of consultations that you
did with the First Nations? Were you able to engage First Nations from all
over the country, and what kind of feedback did you receive? What were their
major concerns? Were the First Nations concerned with violations to their
right to self-governance?
Mr. Duncan: I am sure we have all the consultations listed here
Ms. Kustra: We do.
Mr. Duncan: We do so many consultations on so many fronts that it
is sometimes difficult to remember. You will recall in my speech I talked
about how this was primarily an initiative from Manitoba, the Assembly of
Manitoba Chiefs, and the Atlantic Policy Congress of First Nation Chiefs,
and they did extensive consultation activities in their regions. At the
request of the department, they undertook a national engagement to collect
feedback on their recommendations, and that became the content of the bill.
These groups made presentations to First Nations political organizations
in every province where there was interest in legislated electoral reform. I
have a list of those. I do not think I want to read through that, but there
was a significant consultation in that way, and there was also website
consultations, and copies of that website content was sent as a document to
all First Nations who hold their elections under the Indian Act system. They
were invited to share and discuss the document with their membership. It was
a pretty full consultation.
What was the other part of your question?
Senator Ataullahjan: What kind of feedback did you receive and
what were the major concerns with regard to this electoral framework?
Mr. Duncan: I think the major concerns were the ones that I
described in my speech which dealt with opting in and opting out, dealt with
the power of the minister, which dealt with the appeal process. I think
those were the main concerns that were expressed.
Ms. Kustra has a longer history with that than I do, so she may have a
more fulsome description.
Ms. Kustra: The minister has highlighted the concerns. There was a
lot of support in the consultations that took place across the country,
particularly chiefs were very supportive of the stability that would be
provided through the four-year term of office. They were also interested, in
some regions, in the opportunity to be able to actually have all of their
elections on a common day. This way First Nations could come together in a
province or even in part of a province and agree to have one election day to
provide greater stability within their area.
They were also very supportive of a more robust process for the
nomination of candidates, and I believe the minister spoke to some of the
They were also very supportive of the fact that the legislation would
identify specifically corrupt practices within the confines of this
legislation and also identify penalties that would be imposed for those
corrupt practices. This is one area on which the Indian Act is totally
silent, and it is an area which has been the result of many appeals, but
they were very supportive of the idea of having these subject matters very
explicitly identified in the legislation.
Senator Ataullahjan: Were they concerned with violations to their
right to self-governance?
Ms. Kustra: We did not hear that issue at all mostly because the
legislation is optional. It does not impact First Nations which are
currently operating within self-government regimes or those that are
currently operating under community custom, and it is the prerogative of the
nation to choose the election system that they would like to be governed by,
and so they did not raise that issue of any violations.
Senator Meredith: Minister, thank you so much for appearing before
us this evening. Along the lines of what Senator Ataullahjan was asking, Ms.
Kustra, you indicated there was a lot of support. I am always curious as to
those who write to you and those who oppose this new electoral reform. Was
there any opposition and how did you deal with that to allay their fears?
Mr. Duncan: I am not aware of any opposition, and the reason why
is because it was largely a First Nation initiative. It was driven by those
two organizations: AMC and APC we call them. The legislation is optional, so
nobody's arm is being twisted. It is voluntary. I am not aware of any First
Nation opposition. Was there any?
Senator Meredith: No letters came into your office or through the
department to say this is not the way we want to go? No chiefs opposed this?
Mr. Duncan: No, not at all, and as a matter of fact, the day we
tabled the legislation I held a press conference with Chief Candice Paul
from the Atlantic Policy Congress and John Paul who is the executive
director of the Atlantic Policy Congress. They were very anxious and willing
and happy to be out there presenting the fact that they were happy this bill
was being tabled.
Senator Meredith: Minister, you indicated that this piece of
legislation does not affect those who hold elections under their custom
codes; is that my understanding? Is that correct?
Mr. Duncan: That is correct.
Senator Meredith: In terms of moving forward here, should we adopt
this piece of legislation, what is your time frame for implementation in
terms of the rollover with these new reforms?
Mr. Duncan: We need Royal Assent on the bill, so we have to get it
through the Senate; we have to get it through the House of Commons. I am not
aware that there is an implementation date in the legislation, so it would
come into effect basically right away.
I should clarify. When this exercise started under the initiative of the
Assembly of Manitoba Chiefs and the Atlantic Policy Congress, the Grand
Chief of the Assembly of Manitoba Chiefs was Ron Evans, who is now the chief
in Norway House, and he was a big fan. He was a big part of the initiative.
Since that time, he has gone back to his home community and has been elected
chief there. He vacated the chair, so Grand Chief Derek Nepinak is now the
Grand Chief of the Assembly of Manitoba Chiefs and he is not so favourable
to this legislation. He has expressed concerns that this legislation gives
new powers to me to force an election.
Senator Meredith: Are you saying there is some opposition then?
Mr. Duncan: There is some opposition. I do not think that
opposition would have expressed itself except for the fact that he is with
the Assembly of Manitoba Chiefs and they were so much in favour so he was
forced to take a public position.
Senator Meredith: You brought this legislation in with great
consultation and with great engagement from the chiefs, and you have
seemingly wide support for this legislation. What would be your top three
benefits from bringing this in at this juncture?
Mr. Duncan: I believe I have described them: the four-year term,
common election dates and, from my perspective, taking me out of play.
Senator Meredith: Do they want to take away all your powers?
Mr. Duncan: Among my worst movements as minister in a year and a
half now is the fact that I have been asked to intervene in three elections
after there has been an investigation and so on. There is nothing worse than
me having to sign something that says, "Guess what, you are not a
councillor, " or, "Guess what, you are not a chief and here is why. " In
this day and age that is not appropriate.
Senator Meredith: Are you saying you want to give the power back
to the people, so to speak, and for them to make their own decisions and
vote for the leadership they want to see?
Mr. Duncan: We are giving the power to the courts, which is the
same place it resides for other elections.
Senator Lovelace Nicholas: Minister Duncan, how do the penalties
and offences listed in Bill S-6 compare to those provided under the Canada
Mr. Duncan: I know it is pretty consistent but I do not know the
specifics. I will ask Ms. Kustra to answer the question.
Ms. Kustra: In working with the First Nations from the Atlantic
Policy Congress and the Assembly of Manitoba Chiefs, they did look carefully
at the Canada Elections Act and the penalties and offences there. The
penalties that you see in Bill S-6 are very closely mirrored to those
penalties that are in the Canada Elections Act.
Senator Lovelace Nicholas: The penalties are not in the Indian Act
Ms. Kustra: That is correct.
Senator Lovelace Nicholas: If chief and council are found
fraudulent, will nothing happen to them?
Ms. Kustra: The election can be appealed in the case where there
is an election, as Minister Duncan had indicated. Where there is an
investigation of an election and there has been fraudulent activity to be
determined, so the allegations have been founded, then under the current
Indian Act the minister is required to make a decision as to overturn that
election, so requiring a new election to be held. There are no financial
penalties. There are no other penalties to dissuade people from undertaking
Senator Lovelace Nicholas: What if a chief and council are found
to be fraudulent after an investigation by the RCMP and nothing happens? Can
the ministry not do anything about that?
Mr. Duncan: We contract someone to do an investigation. If they
were to turn up evidence of actual fraud then they would be under an
obligation to deal with the law enforcement authorities locally. I can tell
you that most often what we are talking about are allegations of trying to
influence people through small bribes, to vote a certain way or buying a
mail-in ballot. There were no specific penalties and sometimes these
allegations would be spurious. They were not actually true, but we would
have to go through a full investigation and there was no onus on the part of
the complainant. Now I think there is a fee, is there not, for someone to
lodge a complaint?
Ms. Kustra: There is the possibility that a fee can be imposed by
a First Nation.
Senator Raine: I personally think this is wonderful legislation.
Having travelled with the committee and heard stories about how the current
two-year term is really holding up the stability required for economic
development, I think this is a very good move. It is good that it is
optional, of course.
Moving forward, regulations will be developed. How will they be developed
and what will be included in the regulations?
Mr. Duncan: Our Justice Department official will talk about the
Tom Vincent, Counsel, Department of Justice Canada: We are
actually anxious to work on the regulations. We need to wait until we
actually have Royal Assent to see what the final edition of the bill looks
like. We will start with the regulations that are currently under the Indian
Act and beef them up and match them to the legislation that we will have
under Bill S-6. That is so the regulations will deal with the entire process
for nominations, conducting the election and for the appeal process to send
it off to the Federal Court and the superior courts of the provinces.
Much of the detail will be found in the regulations. We have a fair
amount of expertise at headquarters, and we will also seek to augment that
from electoral officers and from investigation officers who have looked at
Indian Act elections and found some of the shortcomings there.
Senator Raine: Will you be working with First Nation stakeholders
in the development of the regulations?
Mr. Vincent: Yes, we will. I have one who is very anxious to work
with me and cannot wait until we start on the regulations. I can report that
there is some enthusiasm there.
Senator Raine: It will be a four-year term, but I would imagine,
like in other elections, not all of the council would be elected at the same
time so there would be rotating of terms. You would not have four years and
then suddenly a whole new council. Would it be every two years that there
would be an election? Is that something that would be covered in the
Mr. Vincent: It is currently not something considered in the
regulations. We would call that a staggered term where some would initially
have an election period of four years and some would have an election period
of two years. The staggered term provides a great deal of consistency within
the First Nation. However, the appeal of not having staggered terms largely
appeals to provincial organizations that want to have the common election
day, so that there will be the same councils from the same First Nations
that are working together on larger projects as a tribal council or as a
provincial organization. That is something that could be considered to go
into the regulations.
Senator Raine: Is this something that the First Nations involved
could decide amongst themselves?
Mr. Vincent: I am not sure if that would become an optional
provision or not.
Mr. Duncan: There has been no discussion or contemplation in that
regard to which I am aware. Our primary group that will be working on the
regulations with us is the Atlantic Policy Congress.
Senator Raine: I commend you for moving forward. This is an issue
that has held up economic development in many places. I look forward to this
Senator Patterson: Senator Raine has touched on the question I was
going to ask, but I would like to ask the minister if he might elaborate
about economic development. I believe that the Atlantic Policy Congress,
when they pushed for reform of the First Nations elections, talked about
sound governance and the possibility of increasing opportunities for
economic development. Could you explain, please, how this bill will help
advance economic development in First Nations communities or regions?
Mr. Duncan: First and foremost, I think there are about 70 First
Nations in Manitoba, and 10 or 11 in Nova Scotia. Every time you get a group
of chiefs together to talk about a joint project, it would not be everyone,
but if a significant number are elected on two-year terms and if there is
turnover, which there quite often is, if you hold a meeting every three
months, you will end up with new people at the table. They have to be
brought up to speed. This became very problematic. As economic development
has become a bigger and bigger driver of First Nations initiative and focus,
and where they want to put their priority, this became contrary to doing
business. It is pretty simple equation. This is primarily what is driving
I am very hopeful that with the four-year term and with the common
election dates, we will see some real changes. We will see, I think, some
strong mentorship start to happen as well. Those who have been around for a
while and have demonstrated real progress in their communities will be able
to mentor the new chiefs.
Hopefully, that illustrates an answer to your question.
The Deputy Chair: As a supplementary, you were saying that you
believe that having a longer term of office will lead to greater economic
development. With those 341 First Nations that are under custom code who
have I think at least a three-year term, is there evidence that they have
been able to succeed economically more so than those under the two- year
Indian Act elections? Is there any evidence of that?
Mr. Duncan: That is a fair question. It is not one I have thought
about. One thing I have noticed is that very often where we have high
functioning First Nations communities, the chief has been there for quite a
while and it never occurs to me to ask what election code he or she is
under. I think good leadership does not worry about two-year cycles or
four-year cycles because they have the confidence of their people and they
are going to be re-elected anyway. That question is probably worth some
analysis. I am not sure that we have done it.
Ms. Kustra: No, we have not.
The Deputy Chair: Could it be done?
Mr. Duncan: We have not done it, but we will.
The Deputy Chair: Could you provide us with those numbers?
Mr. Duncan: That would be interesting. I do not know how we define
success versus non-success.
The Deputy Chair: It is where you see, however you decide, some
measure of economic independence or business ventures.
Senator Watt: Since the Inuit are also under your responsibility
to a certain extent, will this legislation that you are promoting have some
impact on the Inuit of the North like Labrador, Nunavik and Nunavut?
Mr. Duncan: The answer is no.
Senator Watt: During the Standing Senate Committee on Aboriginal
Peoples hearings on the First Nation elections 2010 — I am not a member of
the committee, so I have to read the materials to ask you the questions — it
was widely acknowledged that there are many problems associated with the
Indian Act elections. It is currently possible, however, for the First
Nation to revert to custom or community-based election from the Indian Act
electoral regime without requiring any legislative change.
What is your answer to that? They are basically saying it is already
there; the exercise has already taken place. Why is there a need for a
Mr. Duncan: The Indian Act is very specific about two-year terms
and it is very specific regarding penalties and so on. What enables the
development of custom code or community elections is the will of the
community, but is there a statutory basis?
Ms. Kustra: No, there is not.
Mr. Duncan: There is no statutory basis for it. It is policy. When
we have an act as old as the Indian Act, it is like the Fisheries Act; many
things tend to happen by policy rather than by statute. It is difficult to
get consensus to make change, which is why many of the changes happen
through optional legislation. I like to use the example of the First Nations
Land Management Act. Twenty-five per cent of the Indian Act started off as
optional legislation for 12 or 13 First Nations in the 1990s and has now
grown to 55 First Nations, and is likely to expand again fairly soon.
We can read several lessons into that. One is the mentorship I was
referring to earlier on economic development. There has been mentorship
provided by the First Nations land management groups. They control their own
lands and they control the monies that are generated from those lands. I do
not have to sign off on anything. I love it because right now I spend too
much time signing off on land use or land designations, not so much in the
North but in the south on First Nations. It all takes incredible amounts of
time to happen, so they cannot operate at the speed of business. Everything
needs to allow for greater urgency. Bill S-6 will allow for greater urgency
in many ways. I think it is the right thing to do.
Senator Meredith: Thank you for bringing that up. We just heard
from several chiefs last night with respect to, again, additions to
There is a colossal bureaucracy that prevents economic development from
moving. We heard about people waiting for 17 years. They are going through
the courts. We heard about a $25 million project in western Ontario. The
provinces approved it, a regional director needs to sign off, and that is
not done. This is holding back the First Nations people.
Minister, you know I am passionate about youth and about youth getting
jobs, talking about mentorship and so forth. How can we reduce the timelines
currently in the system with your department to ensure that these lands are
freed up quickly so that these natural resources can actually get out to the
people so they can be free to move on with their lives? I am sorry; I had to
jump that in there. You talk about the fact it will expedite things, but I
think the machine has ground to a halt.
Mr. Duncan: I do not mind the question at all because, once again,
we have an old process that does not operate at the speed of business.
Senator Meredith: How can we blow this up?
Mr. Duncan: We are doing our best. What the Senate is doing with
its study is, to me, groundbreaking. It is no different from what the Senate
did on addressing specific claims.
We had specific claims that were 20 years old and not going anywhere. The
Senate made some strong recommendations, worked with the Assembly of First
Nations, government adopted new procedures, and we have made major progress
on settling specific claims, especially the unresolved, very large claims. I
could put some numbers to it, but I do not know if that is useful.
What you are suggesting on the addition to reserves policy, we all
recognize there are far too many steps involved. Every step takes
bureaucratic time. There are impediments and waiting periods, and we need to
Whenever I hear of a very egregious case, whenever my staff hears of it,
we try to expedite. I have had some success, but it is not the way to do
business in the longer term. Part of the joint action plan with the Assembly
of First Nations is to work jointly on the ATR process as well. What the
Senate is doing, we are working with the Assembly of First Nations as well.
Senator Meredith: Thank you for that response, because the chart
is as long as the desk that you are sitting at.
Mr. Duncan: I know; I have heard about it.
The Deputy Chair: Could we get back to Bill S-6?
Senator Meredith: My apologies, sorry.
Senator Raine: I have a question about the financing of elections.
My understanding is that under the Indian Act elections there is funding
available for people to hold elections. Under this new legislation will
there continue to be funding available for those First Nations that opt into
Ms. Kustra: The funding that supports First Nations elections
comes from the band support funding, which is provided to every First
Nation. That funding would still be provided to the same First Nations, and
they would be conducting their election under a different legislative
regime. There would be no change in funding. The nation would identify what
it needs to conduct its election. Of course they would only be holding
elections every four years, so the nation itself would be achieving some
economies in not having to financially support an election every two years.
The Deputy Chair: With regard to resources, I believe, minister,
that you said that under the appeals process, where you are in charge, that
you contract out to investigate the appeal. Under Bill S-6, if there is an
appeal process, then presumably the First Nation would be paying because
they would have to go through a court system. That would be an additional
cost to them that they would not incur under the other system.
Mr. Duncan: I suppose that might be true, I do not know. There is
no cost to talking to the enforcement people, dealing with enforcement. It
is only when it would get to the courts.
What I am finding now is when I make a decision as minister it usually
ends up in the courts in any case.
Senator Lovelace Nicholas: My main concern about Bill S-6 is the
elections appeal process and the offences and penalties. I live in a First
Nation and I know how elections are run. That is my main concern.
Will there be easier access to complainants for appeals processes and
offences and penalties? Will there be easier access to government or
Mr. Duncan: The complaint would be lodged with local authorities,
essentially, not with me.
Senator Lovelace Nicholas: Under Bill S-6?
Mr. Duncan: Yes, under Bill S-6.
Senator Lovelace Nicholas: There will still not be easier access
for people to complain about fraud going on in the election appeal processes
under this bill?
Mr. Duncan: It depends. Is it easier to deal with me or to deal
with local enforcement officials?
Senator Lovelace Nicholas: It is harder to deal with you because
we cannot get to your office.
Mr. Duncan: There you go. Then it is easier to deal with local
Senator Watt: Minister, I will have to take you back to the point
I was beginning to raise in order to have a clear understanding of where we
are going with this legislation. I am not that critical. I am not saying
that I do not like this legislation, but I do have some serious questions
about it because I think it could be dealt with in another way.
I believe you asked your assistant if there was a statute that could be
utilized to make that happen. From what I understand, many First Nations
have exercised this option, for example by lengthening their terms of
office, creating appeal bodies and establishing recall mechanisms and
tightening up the nomination procedures. If that has already taken place,
why is it required to put it in the form of legislation when it can be dealt
with in another fashion?
That is my dilemma in terms of understanding this legislation. What does
it really do? I think the four-year term is a great improvement. I also see
other provisions that are great improvements, but I am not too sure when it
comes to the point of relinquishing your ministerial power to a certain
extent with this legislation, if I understood it correctly.
The argument that you are laying out is that they have to be able to make
immediate decisions, not prolonging it and asking for second layers of
decisions, because the economics dictate where that community should go, if
I understood you correctly on that. That is where I see it going.
I am still questioning myself to the point where there is a need for
Mr. Duncan: There are communities that do not want to go with a
custom code or a community code because they have faith in the Indian Act.
They have faith in a statutory. They know the rules. The rules are there
because that is the way the legislation reads. They can be convinced to go
to another piece of legislation that resembles the Indian Act in many ways,
but is a vast improvement. If the community really wants to go to a
community code, fine. However, you will not convince every community that
they want to do that.
We are offering another option. There is a degree of comfort attached to
the fact that it is a statute as opposed to something more nebulous, which
is policy. I believe that is the case, but I will ask my justice expert here
if that is your understanding.
Mr. Vincent: Yes, that is my understanding. Some First Nations are
quite reluctant to adopt a custom code because they see that some of their
neighbours with custom codes end up with prolonged leadership problems going
to the courts. They prefer to have a process that is enshrined in
legislation with defined appeal processes. One of the major problems with
the custom codes is that they are accepted by the courts to have changed by
practice as opposed to changed by amendment, community consultation, and
community agreement as to what those changes are. People end up in court
saying the custom code is this, and other people saying the custom code is
that. The court has to sort that out. If there is only one legislative
process, then it is quite clear to everybody what the rules are. For First
Nations that do not have a large capacity to build their own custom code,
this is a good stepping stone. As well, it gives them a mandate that they
can work on their own custom code over a four-year period of time rather
than try to squeeze it in within two years.
Mr. Duncan: When you have the stability that will come with a
four-year term under Bill S-6, if the community then says, "We would like
to go to a community code or a custom code, " they are in a better place to
be able to develop that because they have that four-year window. There is
nothing preventing them from going there. They can opt back out of Bill S-6
and go to a community code as long as the community ratifies the community
Senator Watt: Even though they have already opted in? It will be
much more difficult to opt out than opt in.
Mr. Duncan: Opting in requires a band council resolution. Opting
Senator Watt: A referendum.
Mr. Duncan: A referendum. That was in my speech.
Ms. Kustra: That is the current situation as well.
The Deputy Chair: One final question from the chair: Minister, if
you decide that you have to add a First Nation into this act, Bill S-6, and
that First Nation objects, can they appeal to the courts? You were saying
your decisions are now appealed by courts. If you decide to add someone in,
can they appeal it to a court?
Mr. Duncan: I think the answer is yes. I would never do that, but
the answer is yes. At least I do not think I would ever do that unless it
was an intractable situation.
The Deputy Chair: Right. Thank you very much for your
presentations. That completes our study of Bill S-6 for this evening.
We will now turn our attention to the topic of the British Columbia
treaty process. On October 25, 2011, this committee received a brief from
the British Columbia Treaty Commission on issues related to the
implementation of the British Columbia treaty process. On November 1, 2011,
the committee decided to produce a short report on the status of the
process. In view of this objective, the committee agreed to conduct one or
two further meetings to hear testimony from the three parties responsible
for the creation of the process.
Today, we will hear from the last of those three parties, the First
Members of the committee, please help me in greeting our witnesses from
that organization. We have with us tonight Grand Chief Edward John, Member,
Political Executive; Mr. Dan Smith, Member, Political Executive; Chief
Douglas White, Member, Political Executive; Howard Grant, Executive
Director; and Nancy Morgan, Legal Counsel.
Witnesses, we look forward to your presentation, which will be followed
by questions from the senators. Please proceed.
Grand Chief Edward John, Member, Political Executive, First Nations
Summit: Thank you, Madam Chair. I always have wondered what happens in
Ottawa on Wednesday nights. Now I know.
Senator Meredith: We work hard.
Mr. John: Respected members of the Senate, thank you for this
invitation to present to your committee. Chief White and I will make some
introductory remarks, and then we are open to questions.
I would like to advise you that my chieftainship name is Akilech'oh. I
was interested in listening to the discussion here because that system is
under our hereditary system, hereditary chief, Tlatz'en Nation, in the
northern part of British Columbia. I was also referred to as Edward John. I
was one of ten children born to my parents, born in one of my villages at
home. I was raised on the land like Charlie — Senator Charlie Watt, I should
say — my dear friend.
Senator Watt: Just call me Charlie; that is fine.
Mr. John: I was raised by my parents and elders and others in the
community; I went to an Indian residential school, as a child to a Catholic
high school. I have a bachelor of arts from the University of Victoria, a
law degree from the University of British Columbia, and an honorary
doctorate degree from the University of Northern British Columbia, which I
had the honour of helping organize in its initial phases.
I want to acknowledge, firstly, the Algonquin peoples on whose ancestral
lands we gather. It is important for us to make these acknowledgements
I have been a member of the executive of the First Nations Summit since
its inception in the early 1990s but involved in land rights issues in
British Columbia from very early on as a child and a teenager.
You heard from the B.C. Treaty Commission, the body that facilitates,
under legislation, treaty negotiations in British Columbia. The word "facilitate
" is in the federal legislation, the provincial legislation and
the First Nations Summit resolution, all three of which breathed life into
this institution. The word "facilitate " is key to the role of that
commission. It has other roles as well.
You heard also from Minister Polak recently, from the Province of British
Columbia, on certain issues relating to its mandate and role in this.
I wanted to begin by saying that the 2011 special report of the Canadian
Council of Child and Youth Advocates to the United Nations Committee on the
Rights of the Child states the following:
The disparities among Indigenous and non-Indigenous children are
alarming. Aboriginal children experience higher rates of malnutrition,
disabilities, drug and alcohol abuse, and suicides than other children.
Across the board you are aware as senators of the socioeconomic
disparities which exist in First Nations communities, Aboriginal communities
across this country. Treaties or final agreements should not
institutionalize or entrench this depth of poverty, nor should these be mere
real estate transactions to get rid of annoying, unsubstantiated, unproven
and anachronistic land claims by First Nations.
In the 1858 Act to Provide for the Government of British Columbia, the
British Parliament referred to our territories as the "certain wild
and unoccupied Territories on the North-West coast of North America . . . to
be named British Columbia. "
On February 14, 1859, Governor James Douglas issued a proclamation which
asserted that "all lands in British Columbia, and all mines and minerals
therein, belong to the Crown in fee. " No notice to, no agreement with, no
consent from and no compensation to indigenous peoples.
Unfortunately, Crown policies even now reflect this same underlying
obnoxious and racist view that indigenous peoples and their inherent rights
do not exist until and unless indigenous peoples prove these in the courts,
that section 35 of the 1982 Constitution, notwithstanding that it
affirmatively recognizes Aboriginal and treaty rights is an empty box.
Senator Watt, you are acutely familiar with this section as being one of
the Inuit leaders when this provision was inserted in the Constitution.
Further, even where some of these rights are proven, in Sparrow,
for example, the Aboriginal right to fish, or in Gladstone, the
Aboriginal right to collect herring, roe and kelp for commercial purposes,
these rights have yet to find their way into any agreement between First
Nations and the Crown, and this approach of denial is also reflected in
Canada's negotiation strategy. That includes the Province of British
However, the courts have taken a vastly different approach. As the
Supreme Court of Canada notes in the Haida case: "Treaties serve to
reconcile pre-existing Aboriginal sovereignty with assumed Crown
sovereignty, " and calls for good faith negotiations reflecting the honour
of the Crown.
Canada's greatest source of wealth comes directly from the lands and
resources in and on these lands, while the First Nations' greatest source of
poverty is the dispossession of the same lands and resources within our
respective territories. These are the same lands and resources which Canada
and British Columbia call "abundant, " and which they market in foreign
countries in their various respective trade missions.
In our respectful opinion, the fair, just and equitable resolution of the
B.C. land question must ensure First Nations are self-sufficient as British
Columbia and Canada are. Of course, the greatest source of this
self-sufficiency is generated from the wealth, the lands and resources. It
is, in our view, in Canada's national interest and priority to ensure that
the land question is resolved fairly, equitably and expeditiously, and that
it provides for real self-sufficiency for First Nations.
Unfortunately, in the last 20 years, we have witnessed that these
negotiations, handled very much by an indifferent bureaucracy, without any
real mandate and premised on the Crown's denial based and predetermined
template and formula-driven policies, are not in good faith and fly in the
face of the honour of the Crown. These fixed, unilateral and self-serving
policy standards come on a take-it-or-leave-it basis. This federal framework
of policies must be scrutinized and substantially revised in light of new
standards established in many court decisions and those contained in the
various United Nations human rights instruments including the UN Declaration
on the Rights of Indigenous Peoples.
In Canada's national interest, the conduct of these negotiations should
be in the Prime Minister's offices with negotiators who are given flexible
and realistic mandates to ensure negotiations proceed expeditiously and that
real and genuine self-sufficiency is achievable.
Finally, on the issue of recommitment — I understood that to be the word
that the chair has been using — to negotiations in British Columbia, we want
to confirm that we have always been committed to good faith negotiations.
Our problem is the revolving door of federal and provincial politicians and
bureaucrats and their ever-changing levels of awareness and commitments.
Every election federally or provincially and the constant change of
ministers makes this an incredibly challenging process for First Nations.
We have a much more extensive presentation that we have submitted to the
clerk that outlines many of these issues. We attended meetings on January 23
to 24 with the Prime Minister and his cabinet members to talk about this
policy framework that urgently and desperately calls for review and
revision. We make this submission and are open to questions. We have been
involved at the centre of these negotiations in British Columbia since its
inception and we have this framework for negotiations. We know that
negotiations are, at the end of the, day the best way to resolve these very
With that, Chief Doug White.
Chief Douglas White, Member, Political Executive, First Nations
[The witness spoke in his native language.]
Good evening, senators. It is an honour to be here in front of you. My
Coast Salish name from my father's family is Kwul'a'sul'tun; from my
mother's family on the Nuu-chah-nulth side is Tlii-shin.
I would like to begin by giving recognition and respect to the Algonquin
peoples whose territory we are gathered on this evening. I am the chief of
the Snuneymuxw First Nation on the east coast of Vancouver Island, British
Columbia, and I am a member of the First Nations Summit task group since
June of 2010.
I wanted you to know why I agreed to put my name forward to be a member
of the task group that is sitting in front of you today, one of the three
principles of the treaty process in British Columbia. One simple idea rests
at the foundation of the decision of mine and it is this: Respectful, good
faith negotiations are the only way to achieve meaningful reconciliation of
pre-existing Aboriginal sovereignty with the assumed sovereignty of the
About 20 years ago, when I was a teenager, I sat at the elbow of my late
uncle Chief Robert Thomas when this process was created. I was called as a
witness in the Coast Salish ceremony conducted in September 1992 at the
outset of this process, when I witnessed Prime Minister Brian Mulroney,
along with Premier Michael Harcourt, together with the leadership of First
Nations in British Columbia, commit to address the serious and long
outstanding business between us.
My First Nation, the Snuneymuxw First Nation on Vancouver Island, is one
of the few First Nations where a treaty was made in the pre-Confederation
era. There Governor James Douglas, in the early days of his government,
acted in recognition and respect of Aboriginal title. The treaty made with
the Snuneymuxw in 1854 was the last treaty made in British Columbia until
the Nisga'a treaty in 2000. Governor Douglas's approach at the time was
guided by and consistent with British law, namely, that Aboriginal title
must be respected and recognized prior to any settlement or development.
Unfortunately for all of us, in the years following 1854, the Crown made a
critical decision in the history of British Columbia when they decided that
Aboriginal title was too complicated to address and too expensive to respect
It is this ugly policy which has such deep roots in British Columbia
history that gives First Nations an even deeper resolve to uproot this
unfortunate policy of denial. I am very cognizant of the fact, being present
in front of the Senate today, that it was 85 years ago that Chief Andy Paull
and Chief Peter Kelly of the Allied Indian Tribes of British Columbia
appeared before a joint committee of the Senate and Commons to address the
very same issue that, 85 years later, we are here to address with you today
when they were here in 1927.
I want you to know that, while I remain firmly committed and believe that
negotiations are required to properly and fully achieve meaningful and
respectful reconciliation, the patience of First Nations that they have
shown over the past 20 years is nearing an end. For the majority of First
Nations in this process, the approach of the Crown, both federal and
provincial, has not matched the expectations of 20 years ago, when we
embarked on this process.
Last fall, we heard from Chief Commissioner Sophie Pierre of the B.C.
Treaty Commission that it is time for the parties to take steps necessary to
get this process on track, or, in the alternative, to consider shutting it
Echoing the decision of Governor James Douglas in the mid-1850s to turn
away from dealing with Aboriginal title, last fall we heard from the Premier
of British Columbia that treaties were taking too long and that her
government would deepen its focus on non-treaty agreements with First
Nations. This is not a long-term solution.
The Supreme Court of Canada has stated that where treaties remain to be
concluded, the honour of the Crown requires negotiations leading to a just
settlement of Aboriginal claims. So there is no question that we must
negotiate in the context of Aboriginal title in British Columbia and reach
just settlement and understanding about what Aboriginal title in British
Columbia means for all of us living together in a new relationship of mutual
respect and recognition.
Twenty years into this process of negotiations, we must ask ourselves the
obvious questions about what needs to be different. The impoverished mandate
of the Crown, a mandate that is not aimed at reconciling sovereignties, must
be changed. No one expected this work to continue for 20 years. Without
substantive change to the federal and provincial mandates, there is no
likelihood of further success. We ask that the Crown consider what is
required to achieve just and meaningful reconciliation and to build a strong
and just future for all of us together.
[Mr. White spoke in his native language.]
The Deputy Chair: Thank you very much.
Is anyone else from the table going to do a presentation? We will proceed
with questions, then. Perhaps I will start off as the chair of the
I listened to your story of the long, involved process of negotiating
these treaties and can sense the frustration. From what you have said,
especially Grand Chief John, I believe you said that the First Nations
Summit certainly is committed to the B.C. treaty process, but it seems like
the other parties involved maybe do not share that same level of commitment
because of the changeover in the political partners that you are dealing
with. However, you yourselves are committed to the process. Would that be a
Mr. John: It is part of the statement, but it is not the main
concern around that. Of course, there are elections. Every time there is a
federal or provincial election, the process slowly grinds to a halt in
British Columbia. Negotiators are advising their counterparts in First
Nations communities that, given the uncertainties of the election, they have
to take a step back. That has been the pattern. Both federal and provincial
elections are held at different periods of time, so everything comes to a
halt. That is a significant issue, but not the main issue.
The main issue that we were very much concerned about is the approach of
negotiations that we see for both Canada and British Columbia. We have some
60 tables in British Columbia, 53 that could be moving forward. Many of
these have been put on the back burner. First Nations community would, for
example to protect a parcel of land from being alienated because they cannot
find the government to put aside that land for negotiation purposes, end up
in the court. The government says, "Well, you can either litigate or
negotiate. You are litigating, so you are off the table. " It goes on.
If a First Nations community alleges that the government is not
negotiating in good faith, the government negotiators pack their bags and
say, "Sorry, but until you apologize and withdraw your statement, we are
not at this negotiating table. " The pattern consistently goes on like that.
If you disagree with the policy framework that they come to the table with,
they say to us, "It is a political process. You can take it or leave it.
So many First Nations communities, despite the fact that they borrowed
funds, end up leaving the process.
At the end of the day, as the Crown's statement that came out of the
Crown First Nations gathering talked about self-sufficiency as the end goal
of these treaty negotiations, with the limited cash land offers that are
being made, it is impossible to achieve the degree of self-sufficiency that
is necessary for those communities to survive into the future.
The Deputy Chair: If you were to make a recommendation as to how,
from your perspective, things could be improved, what would you say?
Mr. John: Process. There is a commitment in the outcome statement
from the January 4 Crown meeting to review this. We want to commend this
committee for undertaking this study. We also are aware and have been
participants in a process set up by the Minister of Aboriginal Affairs and
Northern Development Canada. On the appointment of Jim Lornie as the
minister's special representative to review negotiations in British
Columbia, that report has been completed and was tabled with the minister by
the end of November, and that report speaks to many of the issues. He did
meet with and talked to pretty much all of our tables across the province to
identify the concerns that they see at their respective negotiating tables,
and we are hoping that that report will be available to the Senate. I am not
sure. We have requested to have access to that report in its entirety. We
have not seen it. We are meeting with the provincial and federal ministers
as part of the principals' meetings. We are meeting next week, and hopefully
that report will be made available to us.
On the common table that we have in British Columbia, so-called, all of
the tables came together and identified six common issues which they see to
be at the centre of the policy framework that is there and become
problematic. One of those is the issue of certainty. How do you achieve
certainty while respecting the recognition of Aboriginal rights and
Aboriginal title to continue on into the future? On issues like
compensation, for example, you cannot raise compensation as an issue at the
table. Yet, at the same time the agreement calls for you to abandon that
compensation claim even though you have not had an opportunity to raise that
issue and discuss that at the table. These are past infringements, for
example, and it is a common pattern we see at every table across the
Senator Lovelace Nicholas: I heard you mention, Chief John, that
you went to the meeting with the Prime Minister's summit. Would you say it
was a success? If so, why; if not, why not?
Mr. John: The fact that the Prime Minister met with the leadership
the evening before for two hours, combined with the fact that he stayed the
entire day, notwithstanding that he had commitments to speak in Davos,
Switzerland, about economic matters, to me showed a sign of respect on his
part. In that regard, I think it was an important educational process for
himself as well as members of his cabinet who attended that. In that regard,
I would say it was constructive, and it was very useful that it happened.
There were no significant commitments except to a process saying we will
look at these areas, so we are looking at some of the next steps now. How do
we engage in this? We have gone through this exercise in British Columbia at
least on one occasion with a previous prime minister leading up to the
Kelowna Accord dealing with these very same issues, and we have not been
able to make any substantive progress at all.
Senator Raine: Chief John, you mentioned six issues that the
common table had identified as common issues, and you just gave us two.
Could you give us the other four as well so we could make a note of that?
Mr. John: The six topics that were identified for discussion were
recognition and certainty, recognition being the recognition of the
existence of Aboriginal rights and Aboriginal title, but certainty that the
government has this concept called modification of constitutional rights and
non-assertion. On the question of certainty, this issue was examined by the
United Nations committee on the elimination of racial discrimination, and
they came to the conclusion that they did not see a perceptible difference
between extinguishment and modification, so it remains a very big issue.
The other issues include overlapping claims and shared territories
between neighbouring tribes. As you can understand, we have over 203 First
Nations communities and at least eight major language families in British
Columbia. There are historical overlaps between tribes, and that is an
With respect to the constitutional status of lands, what happens to these
lands that have negotiated? Now the approach is that existing Indian reserve
lands, for example, become fee simple lands within the context of British
Columbia, and some First Nations choose to move in that direction and that
approach, and certainly that is their decision to make.
Matters relating to governance, co-management including shared decision
making, fiscal relations including own source revenue and taxation: The
whole fiscal package is an important one. The approach right now on that is
of course we have seen that in many agreements the tax exemption that is
under the Indian Act. Over a period of time, those exemptions are eliminated
under the agreements, and the question is what is the nature of this fiscal
arrangement? This has become the source of significant problems as we
understand with the 24 modern-day land claims agreements that are in place.
There is a coalition of those First Nations who have completed those
agreements, and those agreements, the own-source revenue, taxation and the
funding mechanisms are problematic, at least from what we gather.
The last one of course is fisheries. Given that the Cohen commission is
inquiring into the missing sockeye in the Fraser River system, the
Department of Fisheries and Oceans has decided that the fishery component of
negotiations is off the table, notwithstanding that the Cohen commission's
inquiry into the missing Fraser River sockeye salmon in a particular year,
and all other fisheries including coastal, groundfisheries, any matter
relating to fisheries is off the table. It raises many concerns. For some
First Nations, that becomes a deal breaker completely.
Senator Raine: The negotiations are very complex, and I can
understand how frustrating it must be that you obviously feel there is not
enough urgency and enough of a task force attending to this from the federal
government's side. I can hear you on that.
I would like to come back on a second round, if I could.
Senator Meredith: I have three questions that I will quickly ask
and then you can answer them in turn.
Chief White, as I understand it, the B.C. summit was evolved for the
treaty process. However, you seem to be focusing on other issues. Have you
moved away from the treaty process in a sense, or are you getting back to
your original mandate of the treaty process?
Mr. White: Are you speaking of the First Nations summit itself?
Senator Meredith: Yes.
Mr. White: The treaty process was established 20 years ago, and so
much time has passed. A generation has passed. The First Nations Summit
organization has continued to be committed to the negotiations all through
that time, but with the passage of time, there are a lot of unexpected
outcomes, political, financial, legal and otherwise. Life progresses and
society progresses but we are still in a 20-year-old process that has not
made significant progress. There have been so many different ways over the
past 20 years that we have been advocating to correct and get this process
back on track.
There are many recommendations from the original task force report from
1990. One of the key ones is recommendation 16, I believe, in relation to
interim measures, which we are seeing at the outset by the three parties as
a key part of the overall process of negotiations. Prior to final treaty
being agreed to, there would be steps along the way where First Nations and
the Crown could come to some kind of agreement on an interim bases where
resources would be made available earlier.
One of the biggest developments in the past 20 years has been the
Haida Nation decision in 2004, which for the first transformed the legal
relationship and framework in relation to Aboriginal title between First
Nations and the Crown. That has caused a significant shift in attention and
focus for all of us.
Senator Meredith: Does this pertain to economic development?
Mr. White: It pertains to Crown decision making in territories of
First Nations where rights have yet to be established either by negotiations
or by litigation. It was meant to be an interim framework. The issue before
the court was whether the Crown should be constrained in any way in its
decision-making processes, such as the alienation of potential Aboriginal
title lands to third parties through tree farm licences and things like
that, while negotiations are ongoing. The court said that the Crown cannot
run roughshod over First Nations while they are negotiating with them.
It gave real teeth for the first time to the notion of Aboriginal title,
notwithstanding Calder and Delgamuukw and all the other cases
that describe the concepts of Aboriginal title in theory. For the first
time, the decision in Haida Nation put teeth to that idea and
constrained the Crown. That has lead to the reality that the primary reason
for First Nations and the Crown to engage these days is related to the duty
to consult that arises out of the Haida decision. For every Crown
decision that comes forward that might impact upon the potential rights and
title of our peoples, the Crown must engage with First Nations.
That has been a significant shift in terms of the capacity of First
Nations to engage with the Crown. There is certainly a lot of opportunity to
address case-by-case issues. In my opening remarks I talked about the
premier's shift away from addressing the real substance of the issues
between us and trying to seek reconciliation of Aboriginal title, of
Aboriginal sovereignty and Crown sovereignty. That is the work that we have
to focus on. We cannot have our attention turned away from these
case-by-case issues. We have to be able to do both at the same time.
It is a great concern. I have had one basic question as a leader at the
First Nation Summit since 2010: Is the Crown willing to refocus, renew and
refresh its mandates to address the obvious reality of the treaty
negotiations that we have been in over the past 20 years? A generation has
passed. As a chief, I have expressed that my willingness to negotiate is
clear. I am committed to that idea, but I think the patience of First
Nations is drawing to an end if we are not able to get the right substance
and the right mandates in the room to deal with Aboriginal title.
Senator Meredith: My next question is to Chief John and the matter
of recommitment. I had the privilege of attending the Crown-First Nations
gathering with Minister Duncan, the Prime Minister and other leaders. There
is a sense that there is a strong commitment on the part of the government
to move things forward. In your view, what does this recommitment to the
process mean from the Summit's perspective?
Mr. John: It is the opportunity to discuss the standards that we
see reflected in the federal policies dealing with these negotiations. These
policies inform the mandate of their negotiators: First, how the negotiators
receive their mandates to negotiate; and second, what these mandates are. We
see many shortcomings in these. The discussion you had earlier with Minister
Duncan on Bill S-6 is important because in British Columbia these issues
dealing with land rights and self-government rights are collapsed into one
table. Any federal initiatives that impact on those are the very same kinds
of issues that are being negotiated and dealt with at the treaty negotiation
table in British Columbia.
Treaty negotiation is the number one priority in British Columbia for the
First Nations Summit. These First Nations have come together to find a
mechanism so they can work together in advancing in a collective way those
issues that are not able to move at the local level. The Crown-First Nations
gathering and the commitment to review this area are important for us. We
have been down this path on several occasions. Certainly, the last one was
leading up to those discussions with the former Prime Minister on these
issues. We are ready, willing and able.
At the First Nations Summit, the mandate is driven not by the executive
elected here but is decided by the chiefs. As these issues of negotiations
proceed, the quality of life of our communities is still important. We have
worked with all the chiefs in British Columbia to develop plans. Like that
old saying goes: You cannot fix a flat tire by yelling at it. In British
Columbia, we have developed significant plans in education, health, children
and families, economic development, access to technology for our
communities, high speed Internet access, across-the-board energy and mining,
fisheries, and matters relating to justice in a collective way and in a
proactive way to help improve the overall performance of our communities.
In 20 years, we have managed to bring the graduation level rates from
about 30 per cent to about 54 per cent in high school. Mind you, not all of
those graduates are at the highest standard in British Columbia. Students
receive the Dogwood Diploma for graduating from grade 12. Many of our
children are also pushed through the system and do not have that
certificate. Even though we are making progress, we have a long way to go.
We are not just sitting idly by hoping that something will happen in
negotiations; we have been active on the litigation front, on the
international front, the Hul'qumi'num Treaty Group, for example, has filed a
petition with the Inter-American Commission on Human Rights around land
rights issues in the southern part of Vancouver Island.
Senator Meredith: Is there a sense that maybe some of the chiefs
are holding up the process of these treaties going forward with their
various demands or entitlements because there is no consensus around the
table? How do you think that we can go through these challenges and ensure a
smoother process? What is the role of the Summit in all of this?
Mr. White: I do not think there is a sense of that at all. The
leadership of First Nations has been very diligent and committed to the good
faith negotiations. They have been there for 20 years. The amount of time
and effort, the opportunity costs associated with the participating in the
negotiations, are significant.
Following up on what Chief John said about commitment, the expectations
of the First Nations leadership and all of us 20 years ago were that the
real issues between us would be sorted out. Some of the recommendations that
we are setting out, the issues that the common table addressed, are all
aimed at trying to get back to the original idea behind these negotiations.
It is our firm belief that the mandates that the federal and provincial
Crowns are bringing to the table do not meet in any way the original
expectations of the process. Two things need to take place. Process
adjustments are required, but there are also substantive adjustments to
Senator Meredith: How are you dealing with overlaps in terms of
the actual process?
Mr. White: Overlaps are a very interesting aspect of all of this,
because the resolution to overlaps between indigenous peoples lies firmly in
the indigenous law, the indigenous relations, the pre-existing relations of
indigenous peoples in British Columbia. It can be a very complicated
process, but it is firmly within the purview of the First Nations. Certainly
there is a need for assistance, capacity in different ways to address that,
but I do not think it is something that cannot be overcome. It will require
time and assistance with resources and other things.
The task group report clearly identified that the process for resolution
should be in place before the conclusion of the treaty, so in some instances
it is a sequencing issue, I suppose.
Senator Meredith: Thank you for that.
Senator Greene Raine has highlighted the frustrations that are sometimes
presented to us here, but we wish you all the best with this process as we
move forward. Again, for me it is all about the economic development that
can take place once these treaty claims are settled. Much resource sharing
can take place for the benefit of, especially, young people and their
Senator Raine: On the issue of overlap, could you comment on the
situation with regard to the Sto:lo and the Yale?
Mr. John: We are aware that that agreement has been ratified in
the community. We are very much aware that it was ratified expeditiously by
the B.C. government for the Yale people as well as the Sto:lo people. We
have heard concerns that have been expressed by the Sto:lo First Nations
communities, and I think you should hear them directly on this.
It is a very complicated issue historically as well as in modern terms,
in terms of relationships between families, communities and territory. I
encourage you to look at this report of the British Columbia claims task
force, June 28, 1991. It reads:
In exceptional cases, the parties may agree to implement the
provisions of a treaty in all but the disputed territory.
The commission, where requested by First Nations, will provide advice
on dispute resolution services available to resolve overlap issues.
Of course, the ultimate is for those communities to resolve these
overlaps between themselves. As we have seen in the situation of the
Nu-chu-nulth First Nations communities, in particular relating to the
Maa-Nulth final agreement, at the eleventh hour they were able to come
to some agreement regarding their respective concerns about what other
people called overlap or shared territories.
In British Columbia, many First Nations are not involved in any
negotiations whatsoever. They choose not to be because they are not at all
confident that the government will change, through the negotiation process,
their policies regarding negotiations of land rights in British Columbia.
They will never participate unless the so-called comprehensive claims
policies are revised and fall in line with what the Supreme Court of Canada,
at the very least, is saying about what are the standards.
Some 40 cases have gone to the Supreme Court of Canada, and the position
of the Government of Canada is that those cases have absolutely no bearing
on these negotiations, notwithstanding the fact that you are talking about
Aboriginal rights in these negotiations. The government's policy position is
that regardless of what the court cases say, at the table this is our
policy, this is our mandate, take it or leave it. They say it is a political
process. We wanted a voluntary process for First Nations to enter into
negotiations. They are taking it to a different level, saying that if you do
not like it, you know where the door it.
Senator Ataullahjan: Senator Meredith touched on my question. We
keep hearing about the inherent rights of First Nations being tied to
realizing their economic potential. How have the delays in this process
impeded your economic development?
Mr. White: Thank you for the question, senator.
The economic development of the whole region is dependent upon the
resolution of this question. It is not just on the Aboriginal side that the
economy is suffering for lack of resolution. You were talking earlier about
Bill S-6 and the minister was talking about the economic development
benefits of this statutory approach. Many analyses and studies have been
done, primarily in the Harvard Project, that illuminate clearly the fact
that the greatest foundation for economic development success for First
Nations can be realized in the context of self-determination and
reattachment to the resources that they have depended upon.
There are 203 First Nations in B.C. and they are all in very different
situations in terms of their economic opportunities. They know best where
the potential and opportunities lie, and the sooner we are able to address
the fundamental issue of Aboriginal title and Crown sovereignty, the better
for the economy of the whole province.
With the project-by-project approach, when all the stars line up there
may be certain opportunities that are beneficial. It is not a long-term
solution. We can see the complexity of things like the Enbridge pipeline in
a context where Aboriginal title has not been recognized and resolved. It
causes significant uncertainty. We need to shift out of this temporary way
station of the duty to consult that is only meaningful in a context where we
have not yet determined Aboriginal title. We need to shift out of that place
of great uncertainty into a framework of proper relations founded on the
recognition of Aboriginal title. When we get there, the economic potential
of the province for First Nations, the province and citizens of Canada will
be unlocked and unleashed.
The Deputy Chair: With regard to title, what percentage of land in
B.C. is involved in these negotiations? Is your title to land based on
traditional territories? I know that in the numbered treaty system it was
based on so many acres per family of five. In your negotiations, what is the
argument used to define what is First Nation land?
Mr. John: We take the view, substantiated by court decisions, that
Aboriginal title has never been extinguished in British Columbia, that it
exists throughout except where it has been dealt with by way of treaty. Then
it is modified to exist in a certain way, the Nisga'a treaty being an
example, as well as the Maa-nulth and Tsawwassen final agreements.
Aboriginal title, otherwise, exists in British Columbia. Treaty 8 was
extended into British Columbia in 1899, and we find throughout history that,
whether it is the Vancouver Island treaties in Southern Vancouver Island
because of the coal deposits that were discovered in the mid island area
that were used to fuel houses and industry on Southern Vancouver Island or
something else, there was a necessity on behalf of the Crown to enter those
agreements as was the extension of Treaty 8 and the gold rush in the
northeastern part of British Columbia. That is why we are making this
We have heard the Prime Minister say that the proposed pipeline by
Enbridge through northern British Columbia is in the national interest.
Therefore, the concern expressed by those First Nations is, you are going
through our territories and we have rights. The Supreme Court of Canada says
that Aboriginal title has never been extinguished, but it is a legal
interest in land wherein First Nations can make decisions about those lands.
We are talking about the entire territory. We are not talking about small
parcels of reserve lands here and there; we are talking about the entire
territories. These decisions will have impacts.
If the Prime Minister says that one pipeline is in the national interest,
surely to God that Aboriginal rights and Aboriginal title of those First
Nations in the pipeline route, together with the proposed tanker traffic
routes on the coast, are as important in the national interest as that one
pipeline. If the government is serious about the national interest issue,
then it must also resolve the land question of those First Nations in this
Coming back to the point that my colleague Mr. White made about
certainty, it creates a whole lot of uncertainty for our First Nations
communities when we cannot exercise the rights. If we go out to catch fish
to feed our families or we go out hunting, we have to look over our
shoulders to see whether or not the government is watching us and that we
are able to do that.
How many other people in this country, when they go fishing or when they
are going to get firewood to heat their homes or to have a reasonable or
moderate livelihood have to go to the Supreme Court of Canada for the court
to determine, yes, you have access to the resources in your territory? No
one else has had to do that, but we constantly have to.
The Deputy Chair: Yes, you made it very clear. Thank you very
Senator Patterson: I would like to thank the presenters for a very
eloquent description of the major dilemma that seems to be in place as we
approach the twentieth anniversary of the B.C. treaty process, which I think
is next September.
I am fortunate to have been involved in a land claim over a very large
area of Canada, the largest land claim in history involving the Nunavut
territory and also some other settled land claim negotiations.
One of the things that I believe drove a sense of urgency — and Senator
Watt would know this better than anyone being involved in the first
comprehensive settlement — was development. It was hydro and James Bay and
Northern Quebec. The Inuvialuit were next with oil and gas in the Beaufort.
There was a lot of resource potential in Nunavut, which is now being
realized, hopefully. In Labrador, they say the Voisey's Bay nickel mine was
what finished it or drew it to a conclusion after years of negotiation.
You mentioned the Enbridge project, Chief White and Grand Chief John,
which has been declared to be a project of national interest. I know it does
not affect all of the 61 nations that are involved in the treaty process,
but it is a very big chunk of land. Does this major project and the looming
threat, it seems, of litigation or conflict, confrontation of one kind or
another, present an opportunity similar to what we saw driving other major
comprehensive land claim settlements, an opportunity to develop that sense
of urgency to reform and revamp the negotiation mandates of at least the
federal government, which we will be reporting to, revamp the comprehensive
claims policy? Can this looming challenge be turned into an opportunity? I
would appreciate your comments on that.
Mr. John: That particular project runs directly through the
territories of my people. There are assurances that have been given,
political assurances that the technology is great and damage not likely to
happen. The problem is that we have had assurances in the past about other
In the territory where I come from, we have the W.A.C. Bennett Dam. You
are all too familiar with the downstream impacts of that particular dam in
the Northwest Territories and the consequences of that particular project.
Then there is Rio Tinto Alcan at Kenney Dam in the Nechako River and the
impacts upstream and downstream to my people from that in those areas.
Together with innumerable impacts that continue and suggesting to our
communities not to worry about this particular project, we will take care of
it, is a concern.
Therefore, when we hear that it is in the national priority or in the
national interest, we are concerned as to whether it is politically how you
trigger that national interest argument in this country and what are the
consequences of declaring a particular project in the national interest.
The concern from our communities is the tone. The tone at the top is
always important, and if the Prime Minister says something is in the
national interest, how do you take into account those interests of First
Nations communities along the pipeline route?
There is an environmental assessment panel considering this proposal now.
We do not know what that panel will conclude or recommend at the end. We
have been through this experience; we have seen it with Taseko Mines, for
example, in the Chilcotin territory. That panel recommended that there would
be severe and negative impacts on fisheries and First Nations, and at the
end of the day, the Minister of the Environment, then Jim Prentice, I am
sure with the support of the cabinet decided that project should not go
ahead. However, a revised proposal has now been submitted by that same
company on that same project, and we are not sure what is going to happen
with regard to that.
Yes, there are opportunities, but take care of some of these issues that
should have been taken care of before. There are ways and means to address
First Nations issues. The Crown, together with First Nations, as the Haida
and the Tlingit people have done, they have come to strategic level land use
agreements so that the First Nations communities have a say in what happens
in their territories. The Tlingit, for example, have a say in the kind of
development and the magnitude of development that happens in their
territory. The Crown also has a say. Together, they are able to make
decisions, but they are also able to benefit. This is a tool that could be
used in a more dramatic way and in a greater way, but it requires resources
at the front end for the governments and First Nations to come together to
find those long-term, strategic-level plans by way of agreement.
Senator Raine: I want to ask you about the agreements you
mentioned with the Haida and the Tlingit. Are these the type of agreements
that are taking place now ahead of treaties, outside of the treaty process?
Those sort of incremental agreements, I guess mostly bilateral provincial
First Nation agreements, is that working or is that just delaying what you
have to do in the end?
Mr. White: This is an important distinction to date between the
provincial and the federal approach in terms of interim measures. It is a
remarkable thing to me that if Enbridge is in the national interest, as has
been discussed by the Prime Minister and others, that they have taken such a
minimal approach to the duty to consult with the First Nations that would be
impacted by this project of such enormous scope that it is of national
interest. The idea that the duty to consult can be fulfilled by a National
Energy Board process is, in my mind, ludicrous. We are dealing with
significant potential impacts in the lives and in the way of life and the
territories of the First Nations people at issue.
How, in this context, the federal government has not taken up the
opportunity, as Senator Patterson discussed, to see this as an issue to
drive a new approach of more thorough and meaningful engagement with First
Nations of projects of this scale and scope is a mystery to me. I really
think that if they turned their mind to that issue, they would see that
coming up with agreements such as the province has put forward with the
Haida Nation or the Tlingit is one potential pathway to go down, where prior
to the establishment of treaty we come up with a different, more clear way
of engaging about major decisions and territories.
Are they successful to date? I think they are an important first step.
How they will play out over the course of time, we need to watch carefully,
because I think they are an important first initiative of shared decision
making throughout territories that needs to be replicated and considered by
the federal government on projects such as this.
Certainly, relying upon an environmental assessment process or a National
Energy Board process, through the particular lenses that those processes are
aimed at, in my view, is not sufficient to deal with the reality of the
potential impacts on title and rights that are represented by projects of
Senator Patterson: I was intrigued to learn that there was a
special representative appointed by the minister to tackle this very same
issue that we are discussing tonight. It is the first time I had heard about
it. I believe you talked about Mr. Jim Lornie. We are hoping to come up with
recommendations to the federal government, and this sounds like a most
Was it a comprehensive consultation, in your view? We do not know what is
in it, and I am not asking you to endorse it holus-bolus, but could you tell
me a bit about the special representative's work and whether he engaged with
all stakeholders meaningfully? If I am not going too far, I guess what I am
after is this: Is this report likely to have credibility, from the calibre
of the individual and the nature of the consultations?
Mr. John: The minister appointed a special representative, and it
is a useful mechanism that ministers can use. In this case, the minister
used that. In the earlier case dealing with specific claims, for example,
which is another important issue, the minister of the day appointed me to
have that discussion with communities across the country. It was very
However, in this particular case, we recommended that the special
representative meet with every table — those who are in negotiations, those
who have abandoned negotiations, those who have concluded negotiations — as
well as to talk to the treaty commission, the B.C. government and the
federal government to obtain a sense of these negotiations and where the
stumbling blocks are.
As I said, we have not seen that final report. We are hoping it will be
shared with us by the minister. We are not sure what it says or how
comprehensive it will be. At the end of the day, we are not sure how wide he
cast his net and whether or not he talked to all the parties. However, that
was the recommendation we made to him.
In addition to his report, I would encourage you to take a look at the
report of the Auditor General of Canada and the Auditor General of British
Columbia, who undertook a similar review and exercise around 2005 or 2006
and have come up with reports. They conducted this exercise jointly, but
they separately provided reports within the mandate of their role as
Those are a couple of the key issues. I would take a look at the UN Third
Committee report that was delivered several years ago. Canada is appearing
again before the United Nations Committee on the Elimination of Racial
Discrimination on February 22 and 23. That is on its human rights records.
Of course, these matters relating to lands, territories and resources are
human rights issues and ought to be dealt with within the context of these
There are a number of local bodies, and the courts, of course, have
continuously examined these within the confines of what they are able to do
with regard to this. We are expecting a decision from the B.C. Court of
Appeal on a very important case involving Aboriginal title in British
Columbia, and that relates to the Chilcotin case that was decided a number
of years ago by the late Justice Vickers, which was appealed by the
government to the Court of Appeal. It has been 14 or 15 months now. The
court has heard the appeals and we awaiting their decision.
Senator Watt: Thank you for appearing in front of the committee.
It has been a long time.
Listening to you people making your case reminds me of the land battle we
had together leading up to 1982, constitutional battle.
I hear you. I also understood clearly, I believe, in terms of the
difficulties you are going through. If I understood correctly, one of your
largest stumbling blocks is that you feel you are not necessarily dealing
with the right people because they mostly represent the government and there
is no real in-between person, no referee between the two parties. I am not
sure whether you have ever tried that, but in the field of accelerating your
negotiations, if you could find something that you can latch on to, as my
good friend Senator Patterson was indicating, that if there is a huge
development that is taking place within your territory, it will be impacting
your rights and your title. I guess the only thing that is understood very
well by the government — or any government, for that matter, or the
developers — is to pinch them where it hurts, that is, take them to court.
That is an avenue, and I believe that is still available to you. You are the
only one who can decide the time to take those actions. The time may be
beyond your control.
However, at the same time, I have gone through this process. I have lived
through the litigations, negotiations, implementations and the revelation,
after the fact, after the negotiations,that certain things are not
necessarily in the right place to be implemented.
As an example, what you seem to be worrying about is the question of
title, access to the land, having a say in the matter that is related to
your life. That is all you are standing on, it is your soil and your
resources. I can understand that.
However, as you know, the government also has a policy. I had to live
through that policy, and I did not like it. I did not want to go through it,
but I had no choice because it was a government policy. It still exists
At that time in my negotiations, more than 30 years ago, it was an
"extinguishment. " Even before you sign the agreement in principle, you
have to write down the fact that you intend to extinguish your right and
surrender your rights in the agreement in principle, let alone in a final
When you finally reach the final agreement, they also call upon
extinguishment. Today, sometimes they call it "quick claims. " Sometimes it
is called "certainty. " However, in a sense, when you look at it and
analyze all of the aspects, the way that I have proceeded and the way that
you people are proceeding is not a very comfortable thing to go through,
especially when you are answerable to your own people.
At times, your own people also question the validity of your decisions,
especially when it comes down to the point of extinguishing your right,
whatever the word that is normally used might be. They do not know what it
is, but they do not mind putting it down in writing and making sure that it
I guess what I am trying to say here is that if you do manage to find an
edge to use as leverage to get the negotiations moving forward, you still
are going to be facing the question of clarity. That is, in a sense,
extinguishment. I, for one, still do not have the clear answer for you on
how we can deal with that issue.
As you are probably aware, and have been informed by your legal people, I
have been working with the Library of Parliament in terms of trying to move
forward in getting section 35 implemented, I have already tabled second
reading. I am at the stage of second reading now on the Interpretation Act.
The Interpretation Act also attaches with mandatory clarification provision.
That would be sort of the beginning. That is in the hands of the government
today. They have adjourned it, and I am still waiting for them to bring it
back and get down to a committee level so that they can begin to start
dealing with that because that is not the only instrument that we will need
if we are going to get serious implementing section 35.
Implementation mechanisms have to be thought of. Timetable mechanisms
will also have to be thought of. There are many different mechanics that we
have to look at. You also have to ask yourself, after so many years of going
through this process, do we also need to make an adjustment within, let us
say, the Department of Justice? We need sensitive enough people placed in
the Department of Justice to look after the concerns of the Aboriginal
people. If you leave it only up to the Department of Justice people, they
are not necessarily going to be representing your interest.
That is one of the issues that I thought I would transmit to you.
The Deputy Chair: Senator Watt, thank you so much for sharing your
wisdom. I am wondering if you had a direct question that you wanted to ask
Senator Watt: I do not.
The Deputy Chair: I saw them all taking notes as you are speaking,
and I am sure they are going to corner you after the meeting and ask you to
Senator Watt: I hope that they will do that.
The Deputy Chair: We have gone well over our time. I want to thank
the senators for asking questions and, especially, our witnesses for the
frankness with which they shared their frustration and also for bringing to
us the current critical situation with regard to economic development and
the pipeline and how all of these things are tied together. Thank you very
much for appearing before the committee.
(The committee adjourned.)