Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 11 - Evidence - Meeting of June 22, 2005
OTTAWA, Wednesday, June 22, 2005
The Standing Senate Committee on Aboriginal Peoples, to which was referred the subject matter of Bill S-16, providing for the Crown's recognition of self-governing First Nations of Canada, met this day at 6:10 p.m.
Senator Nick G. Sibbeston (Chairman) in the chair.
[English]
[Editor's Note: Some evidence was given through a Cree interpreter.]
The Chairman: This evening we have the honour of having with us people from Western Canada, in particular, Aboriginal people. An elder, Mr. William Dreaver, has agreed to say a prayer to open our meeting. Please stand.
Mr. Dreaver, we will be honoured, if you will say a prayer.
[Prayer delivered in Cree by Elder William Dreaver.]
The Chairman: Thank you very much. We have a very busy schedule tonight. We are honoured to have with us representatives of First Nations from Western Canada and from various parts of our country.
Our committee on Aboriginal Peoples deals with a lot of Aboriginal issues. We have a study going on, and anytime there are bills that affect or touch on Aboriginal peoples in any way, those bills are sent to our committee to deal with. We have been doing that all winter and spring. I think we are in the last few days or weeks of our time here in Ottawa in the Senate. We have been dealing with the bill that is presently before us, Bill S-16, An Act providing for the Crown's recognition of self-governing First Nations of Canada, which was sponsored by Senator Gerry St. Germain.
I will now introduce you to the senators that are here tonight. Usually, we have more. Tonight, for some reason, we do not have too many.
We have Senator Buchanan, who used to be the Premier of Nova Scotia; Senator Watt, from Northern Quebec; Senator St. Germain, who has been here for a long time, too; and Senator Peterson, a recent arrival from Saskatchewan. I am Senator Sibbeston and I come from the southern part of the Northwest Territories.
We are honoured to have with us, from the Native Women's Association of Canada, Beverley Jacobs, President. Accompanying her is Sherry Lewis, Executive Director. Would you proceed, Ms. Jacobs.
Ms. Beverley Jacobs, President, Native Women's Association of Canada: I am pleased to be here to address you on this bill and its impact specifically on Aboriginal women in this country. I speak to you not only as president of the Native Women's Association of Canada but also as someone with traditional knowledge as a Mohawk woman from Six Nations Grand River territory. I am also an expert as a lawyer with a Bachelor of Laws from the University of Windsor and a Master of Laws from the University of Saskatchewan. The focus of my research has been on traditional governance and international law. I will be addressing you with all of this expertise in mind.
As I addressed the delegation at the Cabinet Retreat on May 31, 2005, the original relationship that recognized our inherent right to self-government was the Two-Row Wampum treaty belt. This belt symbolized our relationship between our peoples and the colonizer settlers. Here is a brief description of that treaty belt.
When my ancestors first came into contact with the European nations, treaties of peace and friendship were made. Each was symbolized by the Gus-Wen-Tah, which is translated as ``Two Row Wampum.'' There is a bed of white wampum which symbolizes the purity of the agreement. There are two rows of purple, and these have the spirit of your ancestors and mine. There are three beads of wampum separating the two rows and they symbolize peace, friendship and respect. These two rows symbolize two paths or two vessels travelling down the same river together. One, a birch bark canoe, will be for the Indian people, their laws, their customs, and their ways. The other, a ship, will be for the white people and their laws, customs, and ways. We shall each travel the river together, side by side, but in our own boats. Neither of us will try to steer each other's vessel.
The Native Women's Association of Canada's report is entitled ``Our Way of Being.'' We held a meeting with many indigenous women across the country. It was reiterated in that report that the whole purpose of the Two Row Wampum was to recognize the separate but equal relationship between the two parties.
Over time, the colonizer nations have violated this treaty relationship and have forced their laws, their languages, their customs and their beliefs on indigenous peoples. A prime example of this is the fact that the Government of Canada does not recognize the real, inherent, right to self-government: what we call ``sovereignty'' or, as noted by the indigenous women at our gathering, ``Our Way of Being.''
Many treaties were developed over time after this original Wampum Treaty relationship, including all of the pre- confederation treaties and numbered treaties. Many ceremonies and spiritual gatherings were held to recognize the sacredness of these treaties. The most important principle to be taken as a result of these treaty-making negotiations and ceremonies is that it was recognized that all of the various treaty-making parties were distinct and different from each other.
One of our traditional Onondaga sub-chiefs, Oren Lyons, said that this distinctiveness has been seen as the foundation of mutual respect and we have therefore always honoured the fundamental right of peoples and their societies to be different.
Special Rapporteur Miguel Alfonso Martinez, who was appointed by the Sub-Commission on the Prevention of Discrimination and Protection of Minorities, Commission on Human Rights and the Economic and Social Council, was convinced, through his research on treaties, that the European parties were ``indeed negotiating and entering into contractual relations with sovereign nations, with all the legal implications that such a term had at the time in international relations.''
Mr. Martinez also stated that there was incontrovertible evidence that, during the first two-and-a-half centuries of contacts between the European colonizer and indigenous peoples, the Europeans recognized both the international — not internal — nature of the relations between both parties and the inherent international personality and legal capacity of those peoples resulting from their status as subjects of international law in accordance with the doctrine of those times.
The incontrovertible evidence referred to by the special rapporteur was the treaties, which also reflected the sovereign status of the indigenous nations. It has been specifically noted by Canada that treaties are not international legal documents and that self-government agreements do not ``include a right of sovereignty in the international law sense, and will not result in sovereign independent Aboriginal nation states.''
As a result, there are significant differences between Aboriginal peoples and the Canadian government about the concept of the term ``inherent right to self-government.'' In hosting gatherings on self-government, we have learned the views of women, who have stated that there should be no jurisdiction of the Canadian government when it comes to self-determination of indigenous peoples. They also advised that the word ``self-government'' is problematic and that it does not take into account indigenous perspectives of being a people and a nation.
The Native Women's Association of Canada believes that Canada's original peoples have the fundamental and inherent right to self-determination and self-government. The challenge to reclaim these rights has been a daunting task and a long process. Over the years, NWAC has worked diligently to ensure that the rights gained by our women remain constant and ingrained in all self-government and treaty negotiations. We take interest in this proposed legislation because of its long-term effects and implications for the women that our organization represents.
We agree with other nationally recognized Aboriginal groups, such as the Congress of Aboriginal Peoples, who insist on the need to take a rights-based approach to policy and legislative change related to the rights of Aboriginal peoples. NWAC, like many non-government organizations, faces the challenges of having the capacity and resources to respond effectively to the many requests it receives on a daily basis. Although we have not conducted a comprehensive study or consultation with our members on this bill, we come before you today to share what we believe to be the perspective of Aboriginal women on this important piece of legislation.
On May 31, 2005, at the Cabinet Retreat, Canada and Aboriginal leaders representing the five national Aboriginal organizations signed a series of accords reaffirming their intent to establish relationships to jointly develop policy based on mutual trust. NWAC questions how this reaffirmed relationship is consistent with the provisions and terms of this newly proposed Recognition Act. The imposition of policy through legislation seems to negate or undermine this essential partnership due to a lack of meaningful consultation. This proposed legislation, like the First Nations Governance Act, has been drafted unilaterally with no input by Aboriginal peoples.
NWAC is particularly concerned with the clause in Bill S-16 that gives First Nations bands jurisdiction over membership. Women fought long and hard to ensure that their rights were protected under Bill C-31, and NWAC questions how Bill S-16 will address this issue. While membership is an important governance power, given the history in Canada of discrimination against Bill C-31 members, this provision has the potential to create inequalities for those, particularly women and their descendents, who rely on Bill C-31 to regain their status. Thus, it would be prudent to provide safeguards in respect of membership codes to protect the equality rights of First Nations women. This issue underscores the critical need for partnering with NWAC and the development of such legislation to ensure that the equality rights of our members are protected.
Bill S-16 appears to include only First Nations citizens. Metis, Inuit, those living off reserve and those who are non- status appear to have limited benefit from this bill. Furthermore, the bill assumes that only Indian bands will apply for First Nations recognition. As an example, I cite the reference to ``Chief and Council'' in the model constitution in clauses 17 and 23, in respect of the continuance of the Indian Act. This does not reflect traditional forms of government that do continue to exist in this country.
NWAC also has concerns over the issue of matrimonial property rights for First Nations women living on reserve. Many Aboriginal women are survivors of spousal abuse and violence. As such, they find themselvs with little support and protection of their rights. NWAC has worked tirelessly to bring this issue to the forefront of policy reform and to the attention of politicians. The Standing Senate Committee on Aboriginal Peoples recently reported on this issue specifically. We strongly recommend that provisions to protect women's property rights be included in this bill. This could compliment other legislative initiatives aimed at protecting the matrimonial property rights of First Nations women living on reserve.
In his presentation, Professor Patrick Macklem of the University of Toronto spoke about the flexibility as a positive aspect of Bill S-16. We believe that this flexibility has both negative and positive connotations. On the one hand, if ratified, the bill will provide a way to move forward on the important objective of self-government. However, on the other hand, if we make this a one-size-fits-all bill, then in our case we will be doing women a disservice. It is imperative to take the necessary time for adequate consultation with all Aboriginal peoples. Such an approach is consistent with the political accords signed by the five national Aboriginal organizations.
We must ensure that there are adequate enforcement measures in place so that Aboriginal peoples do not need to resort to expensive and lengthy litigation to define our rights, which we have had to do far too often in this country. We have made great strides in negotiations with the Canada-Aboriginal Peoples Roundtable process in improving the relationship between Canada and Aboriginal peoples.
In Bill S-16, sustainability, self-sufficiency and empowerment must be available to all. The bill must ensure that an inclusive approach is provided for, based on the equal participation of all Aboriginal peoples, regardless of gender, residency, disability, age or sexual orientation. We have a collective obligation to ensure that these principles are contained within any proposed self-government legislation from the outset.
Senator St. Germain: Is Ms. Lewis your assistant?
Ms. Jacobs: She is the Executive Director of NWAC.
Senator St. Germain: As a proponent of the bill, I have not consulted with all Aboriginal peoples in Canada, as that would have been next to impossible. We cannot consult with everyone. However, for your information, we have had serious consultations with numerous bands and more will make presentations this evening that have been consulted.
I wish to state that Bill S-16 is enabling legislation, and it is not being thrust down the throats of our Aboriginal peoples. It is enabling legislation that would be passed and utilized only by those that desire to use it. It is important that we have that on the record. Bill S-16 is not being thrust upon our Aboriginal peoples. Rather, it is proposed enabling legislation that would be in place to be utilized by those who felt it was beneficial to them to mitigate costs, to which you made reference in the latter part of your presentation, and to possibly expedite the process.
As you know, we passed Bill C-56 today, which is a land agreement that was 30 years in negotiations. That is ridiculous.
This is not my bill. This bill was instituted at its inception years ago by Chief Walter Twinn, a former Canadian senator. It was through that process that I was asked by various Aboriginal groups to carry on the work. It has changed dramatically from what it was in its original presentation. I do not know if you have had an opportunity to follow the history of the bill, but it has been before the Senate in various forms in the past. I am not saying by any stretch that it is the be-all and end-all.
Is there anything in Bill S-16 that provides the protection that women would require in seeking their rightful place in a self-government process?
Bill C-31 is still out there. There is an article in a Saskatchewan newspaper today about Bill C-31 that says that Aboriginals are facing legislative genocide.
What changes would you make to the bill? That is why we are going through this process now. The bill has not yet gone through second reading; nevertheless, it was referred to the committee so we can hear from various people who represent our Aboriginal peoples across Canada.
Do you have any constructive criticism to put forward? I am not trying to be facetious or smart. I am not a lawyer and I do not have a Master's degree. As the chairman says, we have been around so long we might think we know something and that could be dangerous.
Ms. Jacobs: Part of what I said in my presentation is actually presenting this issue directly to our constituents. If that was part of the consultation process with the Aboriginal peoples we have never been consulted with respect to this issue. That is our criticism, not only with women, but also with our traditional governments. I work specifically with our confederacy and our traditional chiefs and clan mothers. They have never been consulted. That is the issue we are presenting, these issues that address the specific sections of the bill, and if we were to ask for specific feedback from the women in our communities, it would also take a long time and a lot of resources to be able to do that.
Based on the history of the past sexual discrimination against First Nations women in our communities, that is where we come from and that is part of the difficulty that we see in this whole process: How do we know, right from the beginning, that that will not continue? Those are also questions that we have. That is something that needs to be addressed.
Senator St. Germain: I hear what you are saying. As far as membership is concerned, I still think that government should not legislate who determines the membership of any Aboriginal nation. I believe it should be the nation rather than the government. Domestic violence will be removed from the system through education, economic improvement, opportunity, hope and fairness. That is the only way.
What we are attempting to create here is not a vehicle that is thrust upon our Aboriginal peoples, but a vehicle that is at their option. If the shoe fits, they can wear it; if it does not, they do not have to even look at it.
Maybe you have a suggestion as to how anything could be drafted that would mitigate the concerns that you have about violence and these other things. I would like to hear that. I have been on this committee for a long time. I have travelled this country back and forth from the Arctic Circle to the West Coast to the East Coast. We have not heard any suggestions that we could actually implement. If there is anything you could add, we would certainly appreciate hearing it.
Ms. Jacobs: We need time to be able to properly consult with the women. The position I hold in this organization is to be a voice for the women. In order to be a voice for the women, I cannot say specifically to you what it is they are saying, if I do not hear from them. If there is a response from them that has specific recommendations, then I suggest that you look at our report called ``Our Way of Being.'' It talks about what you are talking about: educating our communities; it also goes back to revitalizing our language, culture and traditions.
That is how things will be addressed, because that is part of our identity and that is part of who we are as a people.
In any research I have done, in any Canadian laws that I have seen, or in any legislation that is opt-in legislation, I have never seen anything work. Has there ever been legislation that is an opt-in that works? How do we know that it will not apply to all First Nations? Those are questions that I believe need to be answered.
Senator St. Germain: I hear what you are saying. In the way that we have drafted this legislation, I do not see that there would be any way that government could thrust this on to our Aboriginal peoples, because it would be sitting there as a tool to utilize as opposed to something that would be forced on them.
Senator Watt: Welcome. I think I too hear what you have to say. You have furnished us with a written document, which is something we will look at carefully at the reporting stage of the bill, but I would like to return to a point made by Senator St. Germain.
In regard to Bill S-16, I wanted to ask about the meaning. This is sort of an empty-box theory. This is a skeleton, in a sense, but it is enabling legislation, the way that Senator St. Germain has described it. For that reason, I supported the proposed legislation, in order to examine it — not necessarily to have the bill referred to the committee, but to have the subject matter referred to the committee, and that is the way we have done it. The subject matter is here for us to discuss. How will that be done? Will that be suitable to Aboriginal people across the country, the ones who do not really care too much about entering into land claims negotiations, but who would like to have their treaties implemented?
If we have an enabling legislation concept as a tool that is available to Aboriginal people, I would like to examine that to see whether that could fit some Aboriginal groups who do not wish to enter into negotiations with the government, but would rather have their treaties implemented. From that point of view, it is worth examining this subject to see if that can materialize.
The next problem is that, even if we agree among ourselves, this matter will still have to be referred to the House of Commons. If the House of Commonsdoes not have a clear understanding of it, they will most likely vote it down. Therefore, we are here for the purpose of discussion and to try to further materialize it. Hopefully, at the end of day, that will be useful to the Aboriginal peoples. From that standpoint, we are dealing with this matter.
You talked about consultation. You have not been consulted. Many people have not been consulted on this particular. Maybe one day we will be able to establish the rules and procedures for how the government should be consulting with our people. Right now, I do not think there is a system in place that would satisfy both you and me, to say that we have consulted with you. I do not think we have anything in place at this point in time.
This committee will probably be looking at that scenario. What do we arrive with at the end of day? We do not know at this point. However, I would like to mention the latest ruling involving the Haida in British Columbia, with regard to having to consult with the Aboriginal peoples. That is the strongest ruling I have seen so far. We should build on that and further materialize it and use it to our benefit.
If you have not seen that ruling, I will send a copy of it to you so that you can examine it and build on it. Maybe one day you might come back and give us specific suggestions as to how we go about consulting with people. I think everyone is wrestling with the concept. No one really knows how we should consult with people.
On the other side of the coin, there is also the fact that the government continues to legislate. That will not stop. At times, and I have witnessed this over the last 21 years, legislation has either a direct or an indirect impact on us; that is, infringements on our rights have taken place almost on a daily basis when the government is crafting legislation. We need to learn how to deal with that, because those laws are passed by the government without its even taking into consideration who it is they should consult. That aspect is not in their mind. Their mind set is to pass the law so they can proceed and be doing something that is good for the country and good for the people. However, a lot of the time it is not necessarily good for us. It might be good for the people who live in the city, but the minute you go to the outskirts of the city that one-law-fits-all approach does not work.
We need to come up with some mechanism to deal with those aspects. Being a senator and having the ability to deal with it only at the tail end is not good enough. We have to be up front, right at the beginning; when the policy begins to be formulated, we should be there. We should also be there when the actual drafting is taking place, because when you are doing the drafting a set of negotiations will be taking place.
We need to do a lot of work within ourselves to come up with a tangible solution that we can bring forward to the government. I will stop there for now.
The Chairman: Do you want to comment on that?
Ms. Jacobs: I want to comment on two things you talked about. One is on treaties. You talked about some First Nations who want to have their treaties implemented. There is nothing in the legislation that talks about treaties. There is nothing that guarantees that will happen.
Also, with respect to rules and procedures of consultation for the Aboriginal peoples, I have read the case. I know that it is important, which is why I brought it forward. In the sense of rules and procedures, we have the processes to be able to advise on a proper consultation process. That comes from our traditional forms of government, because there is always a process in place where every individual person has a say in what happens in their life. Our traditional form of governance is to ensure that every person is consulted, and to ensure that the decisions being put into effect are important to them. That is part of the holistic well-being of the community. Everyone in every nation could have a different opinion as to what these rules and procedures are.
However, that comes from our ways. The Canadian legal system, the political system, always comes from that hierarchy that is always from the top down. Our communities and our traditional forms of government have never been that way. It has always been holistic — that is, in thinking holistically and in a circle. Those are our ways of dealing with it.
When Canada accepts that that is our traditional form, it will be an amazing change. I would like to see that.
Senator Watt: How do you feel about the Canada-Aboriginal Peoples Roundtable discussions now? Do you consider that a way of consulting with people? The four leaders are involved and I think you also are a member of that.
Ms. Jacobs: I think there are inherent difficulties with the policy, with the Cabinet Retreat, because there are some organizations that are not at the table. However, in the sense of our national organizations, I think we all try to do what we can in consulting with our constituents and our members. I can only speak for our organization. The work that we do is always influenced throughout the country through all of the women in our communities.
Senator St. Germain: I have a short question.
The Chairman: Does it arise out of the discussion now?
Senator St. Germain: Yes. If our Aboriginal peoples have inherent rights, why should they have to negotiate for them? I think this is what Bill S-16 is trying to do. You asked me about enabling legislation. The Land Management Act, Bill C-49, was passed and it was enabling legislation. It was controversial. Some native bands opposed it; others supported it. There is also Bill C-20, having to do with financial institutions.
My question goes back to membership. If there was one thing that we wrestled with during the process of trying to come up with a fair piece of legislation that sort of reflected what our Aboriginal peoples could utilize — and we are not telling them that they must or should use it — it was the membership. Do you have a comment on who should determine membership or how it should be determined? It is one of the most contentious issues out there for our Aboriginal peoples. How will a Metis be identified? How do the various nations establish membership? Do you have a solution to that, Ms. Jacobs, or have you a recommendation to put forward? This is one of the toughest issues we have dealt with in drafting this legislation.
Ms. Jacobs: I have a response to that. I come from a traditional confederacy that is based on a matriarchal society. There is a traditional form. I am a member of the Mohawk Bear Clan. That is based on my mother. It is based on the matriarchal lineal society. That is based on our nation. There is no doubt who your child is and how to determine membership. There are processes and protocols in place to determine that membership.
Senator St. Germain: Do all Aboriginal nations accept that method of determining membership?
Ms. Jacobs: I do not know, because I cannot speak on behalf of them all.
Senator St. Germain: You represent various groups across the country, do you not?
Ms. Jacobs: I am sure they all have traditional forms of membership. May I also respond to something the senator said about our inherent rights and that we should not be asking the government for our rights? We should not be asking, and that is part of what I talked about right from the beginning. We should not have to ask anyone. We are talking about our sovereignty and our rights. We should not have to ask and negotiate for our rights, because they are inherent rights.
Senator St. Germain: I agree.
Ms. Jacobs: This proposed legislation says that that is part of what we are doing. Any proposed legislation in Canada tells us that this is what we have to follow.
Senator St. Germain: How would it be determined then, if there is no legislation?
Ms. Jacobs: Each individual nation has its own process of self-government. My question has something to do with our way of thinking about governance, because our people have always had a form of governance. Since time immemorial, that is all we talk about. Therefore, why can it not be accepted that that is the way it is? We accept sovereignty of Aboriginal peoples and Aboriginal nations.
Senator Peterson: The consultation issue has come up before, or the lack thereof more than anything, and the fact that it is flawed. You represent the Native Women's Association of Canada so your presentation would cover that broad spectrum. Do you represent all native women?
Ms. Jacobs: I represent our membership across the country.
Senator Peterson: If individual consultation were done, how far would that have to go?
Ms. Jacobs: We have 13 provincial-territorial member associations across the country. Each one of those provinces and territories has a membership. To gain women's input into the proposed legislation through proper consultation, it would have to be brought forward and feedback on it would have to be requested. Therefore, it is a matter of travelling across the country to obtain that feedback.
Senator Buchanan: This is interesting. Some things you mentioned cause me to think that you are saying there is an inherent right of self-government for the Aboriginal peoples of Canada — sovereignty, as you call it — outside the Constitution of Canada. Is that right?
Ms. Jacobs: The traditional form of government that I am specifically talking about is the Haudenosaunee Confederacy. The original relationship between the Haudenosaunee and the British never included consultations with the chiefs and the clan mothers — our traditional form of government. Therefore, they have always believed that we are not Canadians, because we have a form of government that is separate from Canada, and from the United States as well, because it is a confederacy between Canada and the United States. It may be different from other nations that might not have that kind of relationship. I am talking specifically about that.
Senator Buchanan: Are you saying that the inherent right of sovereignty for the Aboriginal peoples of Canada should not even be discussed in the Constitution of Canada; that the Constitution of Canada is irrelevant as far as you are concerned for Aboriginal peoples to have sovereignty?
Ms. Jacobs: It always creates confusion.
Senator Buchanan: Back in the 1980s, when I was part of every constitutional conference, one of the problems was the confusion among various First Nations in Canada as to their meaning of ``self-government.''
Ms. Jacobs: In my mind the definition of ``self-government'' is painted in a broad stroke across the country when there is not a single definition. Part of my presentation stated that all of our nations are different. Some nations want to be part of the Constitution, and I recognize the Constitutional Rights under section 35 that they want to be a part of.
Senator Buchanan: Could you say that again?
Ms. Jacobs: There are communities and nations that follow under section 35 of the Constitution Act.
Senator Buchanan: Section 35 of the Constitution Act —
Ms. Jacobs: — is recognizing Aboriginal and treaty rights.
Senator Buchanan: Yes, Aboriginal and treaty rights were confirmed. However, section 35 of the Constitution does not recognize self-government. That was never intended.
Ms. Jacobs: That is what inherent rights are — the inherent right to self-government should be included, if that is what we are talking about.
Senator Buchanan: You are saying ``should,'' but ``inherent right to self-government'' was never included in section 35. That was the subject of great discussion back in 1980-81. Every conference thereafter included a discussion on self- government. If section 35 had confirmed the inherent right to self-government, we would never have discussed it in 1983, 1985, 1987, 1988 and so on. Therefore, section 35 did not entrench in the Constitution self-government for Aboriginal peoples. I understand that the government says it has a policy of self-government, but that does not confer self-government under section 35. Do you follow what I am saying?
Ms. Jacobs: Yes.
Senator Buchanan: Section 35 is quite clear that the existing Aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed.
Senator Watt: That could include self-government.
Senator Buchanan: No, it could not.
Senator Watt: Why not?
Senator Buchanan: If it did, then I do not understand why, from 1982 until the last conferences, the discussion was always centred on self-government for Aboriginal peoples. If self-government was already included in section 35, why would we even bother to discuss it for the last 20 years and more? It is not in section 35. I am not saying that I am opposed to it. Back then, if it had been part of the Constitution discussions of 1980-81, Nova Scotia would have agreed to it, because we have not had a problem with it. However, the western provinces did have problems with it and, therefore, it was never included in section 35, unless you can interpret ``treaty rights'' as including a right to self- government. I have never seen in a treaty right that it included self-government.
Senator Watt: They were already governing before.
Senator Buchanan: That was not in the treaties.
Senator Watt: Even before the treaties, they had their own governing institutions.
Senator Buchanan: Look, do not get me wrong. I am not opposing anything here.
Senator Watt: They were here before you.
Senator Buchanan: I realize that.
Senator St. Germain: I think Senator Buchanan was here before everybody.
Senator Watt: Maybe he was here before us, who knows.
Senator Buchanan: Under the Constitution of Canada, if you want to look at levels of government, there are only two levels of government recognized by the Constitution of Canada: Federal and provincial governments. Those are the only two governments that are recognized. Municipal governments are not part of the Constitution of Canada. They are not recognized in the constitution at all. They are creatures of provincial governments.
If section 35 conferred self-government on the Aboriginal peoples of Canada, we would have three levels of government in Canada, which we do not have.
I want to make it clear: I am not opposing anything here. I am just suggesting that we should clarify the situation vis-à-vis the Constitution. You are not really talking about self-government for your various First Nations as being conferred by section 35, are you?
Ms. Jacobs: I am talking about inherent rights. If that is included in section 35, then that is what I am talking about.
Senator St. Germain: On a point of order. We have quite a list of witnesses. I will try to shorten my questions to give other senators ample opportunity.
The Chairman: With that, we will have you continue the discussion with the next witnesses.
Ms. Jacobs and Ms. Louis, thank you very much for your well-prepared presentation.
Our next witnesses are representatives from the Lesser Slave Lake Indian Regional Council, the Sawridge First Nation and the Ermineskin First Nation.
Please proceed.
Grand Chief Rose Laboucan, Chief, Driftpile First Nation, Lesser Slave Lake Indian Regional Council: Honourable senators, thank you for having us here this evening and for listening to us, because I know you will be listening. I wish to thank the elder for his prayer — he prayed for all of us — and I thank my fellow chiefs who are here today to support us with Bill S-16.
I wish to start by saying that the first order of government is now seated. Just kidding!
If you will bear with me for a few minutes, I wish to go over the history of Bill S-16. It is ironic that everything we do becomes history, and yet it is not our history; it is made up by someone else.
The Lesser Slave Lake Indian Regional Council, on behalf of its member First Nations, began the pursuit of recognition of First Nations self-government with a submission to the Penner Commission in 1982. That submission included a draft bill for the recognition of First Nations self-government. The Penner Commission did not result in anything.
The Sawridge Indian Band, one of the members of the Lesser Slave Lake Indian Regional Council, of which I am now the Grand Chief, prepared a draft self-government bill that it presented to the Minister of Indian Affairs in 1988. After a year of negotiations, Sawridge entered into a framework agreement with the minister for the negotiation of a Sawridge self-government bill under the community-based self-government program in September 1989.
Extensive negotiations began almost immediately and continued until an agreement-in-principle was reached between the government negotiators and Sawridge in April 1991. That agreement was ratified by cabinet in October 1991, with instructions that drafters prepare a bill for introduction in December 1991. The drafting began right away. They prepared a bill for introduction in December. It became apparent that the department was now taking the position that all members, including an undisclosed list of members recognized by the department who had not applied for membership under the band membership rules, would have to ratify the bill, despite the fact that the process had already witnessed three community ratifications by the electors of the band as agreed to between the department and the band.
After six drafts were prepared and discussed, the process broke down. The drafters then refused to release the seventh draft unless the band agreed to permit the ratification by all those that the department felt were entitled to membership.
Despite the fact that membership control had been assumed by the band years earlier with the acknowledgment of the department, in the end, the unelected, permanent, government of civil servants refused to implement the decision that had been made by the elected government.
During the pursuit of self-government by Sawridge, the other members of Lesser Slave Lake Indian Regional Council became interested in having the option of adopting self-government arrangements. The chiefs of the regional council met with then Minister Irwin to explore this, but the minister walked out of the meeting. You know how these things go.
The chiefs then approached Senator Tkachuk for his assistance. He arranged, through the Senate, for the appointment of a drafter to draft the bill in accordance with Sawridge's agreement-in-principle, which could be opted into by any First Nation. The result was a draft bill similar to Bill S-16, which was introduced on March 30, 1995, as Bill S-10.
Over the next decade, the bill went through committee hearings and Senate readings, dying on the Order Paper every time there was an election or when Parliament prorogued. On every occasion the bill was reintroduced, sometimes with modifications, but essentially the same as the bill before.
I can give you a list of the former bills. Bill S-10 was introduced on March 30, 1995, and I then made a presentation to senators, speaking on community and what community means to us. You should have the records of that Senate hearing. Other incarnations of this bill include: Bill S-9, June 13, 1996; Bill S-12, November 25, 1996; Bill S-14, March 1998; Bill S-38, February 6, 2002; Bill S-16, October 27, 2004.
In 1999, with Treaty 8, we signed a declaration-of-intent with then minister Jane Stewart. That gave us an opportunity to exam the 21 promises, hence the bilateral process and, in 1995, the inherent self-government policy.
Despite that, and the passing of one of the bill's strongest proponents, Senator Walter Twinn, on October 30, 1997, the bill continues to be supported by First Nations from across Canada, who believe that this is an important self- government initiative.
I lost a hero recently, Dr. Harold Cardinal. He said at our scholars' conference recently, just before his passing, that:
Our teachings, traditions and ceremonies have given our people a sound and solid conceptual framework within which we can continue to meet new challenges and opportunities which accompany every era of our existence.
In my opinion, Bill S-16 is a new challenge. It is a mechanism that can address our inherent right to self-government and a right to govern ourselves, and not just by the mere token opportunity presented by the delegated ``inherent right'' policy under which we have to govern ourselves now.
It is time to silence the voices of failure and of doubt as to who we are as a people in this country. We are a magnificent people. We are the real and true heritage of this country. In my opinion, the time has come when we will no longer be legislated strictly by policy but will be in control of the people whom we have to govern.
We need to design and designate what an inherent right to self-government could look like for our people. Bill S-16 has allowed us that opportunity and we have taken advantage of it. We do not want to lose sight of it now.
How many times do we have to go around Center Block for Bill S-16? We went to both the back door and the front door. We have been there many times already. Many other bills have gone through, relating to First Nations; there was even an accord signed with AFN and the Prime Minister. Yet we are back to the Senate once more on this particular bill. I am beginning to think of discrimination and of racism. I pray to the creator that that is not part of the problem. We are only trying to address the so-called shameful conditions of our First Nations communities through this bill. I believe our involvement in the bill allows us to believe that it is part of us.
In Treaty 8, there is talk about consultation under the self-government process that is occurring now under the bilateral process. We have consulted with our people in Treaty 8. When dealing with the National Children's Agenda, we visited 23 First Nations. In respect of the education part of it, we have visited 16 First Nations thus far and have had numerous consultations with people both on and off reserve. We have not forgotten any of our people.
Bill S-16 is an act providing for the Crown's recognition of self-governance of First Nations of this country. Regardless of how we look at it, and of course there will be differences and discrepancies in anything that is legislated, I think that in this process First Nations have been involved from the beginning, First Nations who wanted to make a difference for their people. Despite the fact that many organizations are recognized by the Prime Minister of this country, that does not mean that they represent everybody out there. We, the chiefs, the leaders of the communities, are the ones who represent our people in the community. We know what is going on and we know what the needs are.
We have gone to many workshops on Bill S-16. We have made presentations in Manitoba and Saskatchewan and, in fact, have gone all over with this bill, because we believe that we need to enable and to empower our people. I think this is one of the processes that can do it.
The Chairman: Thank you very much, Grand Chief Laboucan. We now have Vice-Grand Chief Roland Twinn.
Vice-Grand Chief Roland Twinn, Treaty 8, Lesser Slave Lake Indian Regional Council; Chief, Sawridge First Nation: I will speak on the membership issue, as it has been the subject of questions by other witnesses.
Sawridge and Tsuu T'ina First Nations are in a legal court case on Bill C-31 based on the membership issues. The Sawridge and Tsuu T'ina First Nations asked the Federal Court to declare that we have certain rights which are collective rights. These include rights to our lands, resources and property; rights to our governmental institutions; and rights to exercise our customary jurisdictions and laws according to our own discretion, traditions, customs, and practices. These rights also include rights to determine their societal relations with those who belong to their respective collectives. That is to say, each First Nation has a right to determine who is and who is not a member of their First Nation. This right is one of the most central and integral features of any right of self-government. This right is derived from the First Nations' right to govern ourselves and our unextinguished title to our reserve lands.
There are rights which the First Nations possessed long before the arrival of Europeans to North America and which were never relinquished, notwithstanding the European colonization of North America. The rights claimed by the Sawridge and the Tsuu T'ina were existing Aboriginal rights prior to the signing of Treaty 7 and Treaty 8. Those rights were not diminished by the treaties. To the contrary, they are evidence of these rights. They recognize the First Nations as political entities with a claim to their respective reserve lands and with their own respective governance capable of making treaties on behalf of an identifiable, distinct, people.
These Aboriginal treaty rights were recognized by the imperial Crown since at least the Royal Proclamation of 1763. Today, they are recognized and affirmed by section 35 of the Constitution Act, which makes invalid any action by Canada's Parliament or officials to contravene those rights. The Royal Proclamation also reaffirmed the right of the First Nations to determine our own membership.
In summary, the Sawridge and the Tsuu T'ina have the inherent Aboriginal and treaty rights to govern ourselves and to hold unextinguished title to those lands set aside for our exclusive use. Any imposition by Canada with respect to membership can and will cause profound interference with each First Nation's social, cultural economic and political lives and structures. In addition, any such interference also interferes with the exercise of each First Nation's collective rights of self-determination and/or self-government and undermines the health, well-being, and stability of the First Nation. Therefore, the Sawridge and the Tsuu T'ina are seeking declarations. Impositions of Canada on their right to self-government, including their right to determine their own membership, have no legal validity. Their rights are recognized and affirmed by the Constitution of Canada and, thus, have no force or effect.
The matter of the protection of these rights of self-government and title was placed before the Federal Court; the Department of Indian Affairs and Northern Development has taken the position that the Sawridge and the Tsuu T'ina do not have the right to self-government, nor the right to determine their own membership, nor do they have title to their reserve lands. That position is contrary to the ``inherent right'' policy of the Government of Canada.
This has been a long, costly, legal court battle; if a bill such as Bill S-16 had been in place this would not have happened. It is costly for us and for the Government of Canada, which, in turn, is costly for the taxpayers of Canada. We, as a First Nation, do not want to be a burden on the taxpayers of Canada; we want to be a participant in the economy of Canada.
I see we do not have much time. I liked the questions that were asked of the first witnesses, so I will end it there.
The Chairman: Willie Littlechild, it is a pleasure to have you before our committee. I know that you have been a member of Parliament, and I am honoured to say that we were schoolmates in law school at the University of Alberta way back in the 1970s. It is an honour to have you tonight.
Mr. Willie Littlechild, Ermineskin Cree Nation, Treaty 6, Alberta: I would like to thank Elder Dreaver for his prayer to open the meeting.
For many years, elders and leaders in my community have expressed very serious concerns about the lack of recognition for Indigenous-First Nations governments in Canada. We believe very strongly that the Maskwac's Cree have an inherent right to govern ourselves and have affirmed the Chiefs' Declaration. As some of you may know, there was a National Chiefs Assembly a few years ago, the largest gathering of chiefs at which they made the following statement known as the Chiefs' Declaration:
The Creator has given us the right to govern ourselves and the right to self-determination.
Indeed, Mr. Chairman, Treaty 6 is prima facie evidence of these rights and responsibilities.
Since 1977, at least, we have argued this position in the international arena. With your permission, therefore, Mr. Chairman, our intervention will focus only on the international perspective to support our call for domestic recognition. I believe we can be guided by international law and standards in this area. Time, however, as my colleague has just reminded me, only permits four references.
The first reference is to a United Nations ``Meeting of Experts,'' which took place at Nuuk, Greenland, from September 24 to 28, 1991, on Indigenous Autonomy and Self-Government. That UN meeting of experts stated that they: ``...recognize that Indigenous Peoples are historically self-governing with their own languages, cultures, laws and traditions.''
Mr. Chairman, while I commend the whole report of that august committee, allow me to quote directly four relevant paragraphs from the Nuuk Conclusions and Recommendations:
1. Self-determination of peoples is a precondition for freedom, justice and peace both within States and in the international community.
2. Indigenous Peoples have the right of self-determination as provided for in the international covenants on human rights and public international law and as a consequence of their continued existence as distinct peoples. This right will be implemented with due consideration to other basic principles of international law. An integral part of this is the inherent and fundamental right of autonomy and self-government.
I remind you, honourable senators, that this was a United Nations meeting of experts stating this in 1991.
3. For Indigenous Peoples, autonomy and self-government are prerequisites for achieving equality, human dignity, freedom from discrimination and the full enjoyment of all human rights.
I am not sure if it was by coincidence that at least two out of the three previous speakers talked about equality and discrimination.
The fourth relevant paragraph of that UN experts' report is No. 8:
8. Autonomy and self-government can be built on treaties, constitutional recognition or statutory provisions recognizing indigenous rights. It is further necessary for the treaties, conventions and other constructive arrangements entered into in various historical circumstances to be honoured, insofar as such instruments establish and confirm the institutional and territorial basis for guaranteeing the right of Indigenous Peoples to autonomy and self-government.
If I might just pause there, I will refer to a question that Senator Buchanan raised. It was his correct observation that section 35, which affirms treaty rights, includes the inherent right to self-government.
Prior to this, the United Nations Working Group on Indigenous Peoples had been meeting annually since 1982. They had been given the task of setting standards and had been working on the United Nations Declaration on the Rights of Indigenous Peoples. They worked on that for 12 years. Then, in 1994, the Sub-Commission on Human Rights adopted Article 31 of that declaration, which states:
Indigenous Peoples, as a specific form of exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, including culture, religion, education, information, media, health, housing, employment, social welfare, economic activities, land and resources management, environment and entry by non-members, as well as ways and means for financing these autonomous functions.
I refer to that because it was a follow-up from the previous meeting of experts that was held on self-government. This, as you will note, talks about areas of jurisdiction. After that, however, another working group was established by the Commission on Human Rights. The chairperson-rapporteur's report of the 10th session of that working group was presented to the 61st session of the Commission on Human Rights just a few months ago. The chairman proposed, in this area, that an article read as follows:
Indigenous Peoples, as a specific form of exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs.
That was at the United Nations. The third reference is to the Organization of American States. Since 1995, they too have been considering an indigenous declaration on the rights that they have under international law.
I am not going to quote again Article XV of that, because it is a very similarly worded article to the UN declaration, except for the first sentence, which reads: ``Indigenous Peoples have the right to freely determine their political status and freely pursue their economic, social, spiritual and cultural development and, accordingly, they have the right to autonomy or self-government...,'' and again it lists areas of jurisdiction.
I would refer you to the Indigenous Caucus proposal to the Working Group of the OAS Committee on Juridical and Political Affairs of last November. I see it has been circulated, so I will not read the quote. Again, it seems not only to repeat but to reconfirm what the international bodies have agreed to as to the inherent right of self-government and what that means.
There are many other relevant international law documents I could quote that recognize the existence of indigenous governments. Notwithstanding that, there is still a very great concern internationally.
Let me conclude with a recent and noteworthy report. On March 14, 2005, again at the 61st session of the UN in Geneva, the United Nations Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous peoples presented his Mission to Canada report. As I believe senators know, the United Nations has a mechanism by which they appoint a special rapporteur to study human rights violations in countries, and Canada was one of those countries visited last year.
In paragraph 21 of his report, he is talking about indigenous issues, including treaty and Aboriginal rights, and he states:
In recent years, these issues have been brought before the Supreme Court for legal interpretation and certain landmark cases have contributed to reaffirming Aboriginal rights in various areas. It is claimed, however, that Indigenous communities must often return to the courts to obtain compliance by the Government with earlier court decisions. This has led to almost endless and costly litigation —
as we heard before, Mr. Chairman, —
so that all parties involved appear to be eager to find other more efficient solutions. A possible alternative would be legislation on Aboriginal treaty and constitutional rights.
Mr. Chairman, this is an important conclusion and observation by an independent, special arbiter. He stated that:
A step in this direction was taken in October 2004 with the introduction in the Senate of the First Nations Government Recognition Act [Bill S-16].
In conclusion, Mr. Chairman, I agree with Mr. Rodolfo Stavenhagen that ``Bill S-16 is a possible alternative'' for the many benefits that have been stated by previous and fellow witnesses and for the reasons provided by Elder Dreaver, and I would respectfully urge senators to adopt and pass Bill S-16.
Senator Watt: Welcome to all of you. I will try to focus on Bill S-16 as much as possible. I think you are content to be on the receiving end at the end of the day, if the bill becomes a reality. You will then inherit this proposed legislation, I believe.
I have made it known that I have some problems with certain areas of the bill. I will try to cover one area at a time and ask how you would deal with it.
First, I have concerns about the scope of the proposed legislation relative to the reserve. What happens in the case of adjacent lands to your reserve that might have traditional activities, such as hunting. Will those activities somehow be curtailed by this governing institution if the bill becomes a reality? It is important to consider what is adjacent to your lands for your people to practice their pursuits.
Second, I have concerns about the law-making power. If you gain a law-making power, it will put you in a position to take power away from the two levels of government that are recognized in the Constitution — federal and provincial. Could we move ahead if we became jealous of our own power, like the Government of Canada and the provinces are jealous of their powers? Is there not a way to move forward without putting ourselves in such a position?
Through negotiations with the federal and provincial governments we could develop innovative ideas that would likely change the landscape of this country. That would probably have an influence on the provincial and federal powers — not necessarily putting yourself in the position of taking their power away from them, but in the sense of having the ability to formulate legislation. How do you deal with the federal government and the provincial governments?
Could we be innovative and devise a kind of mechanism to deal with the two jurisdictions? At this time we assume that we have both provincial and federal power in our own little governing institutions — tailor-made for our communities. However, with the passage of this bill, you will be in a position to compete, or conflict, with the provincial and federal governments. Thus, you may have the power, but how do you interact with the other two?
To what extent could your law override the provincial legislation, and to what extent the federal legislation?
The Chairman: Chief Twinn, would you care to respond?
Mr. Twinn: I will give it my best shot. It is a question of pretty broad scope. The first point on traditional lands is a relatively new issue not contemplated in Bill S-16. However, I believe that would be addressed in the Constitution of that First Nation, because the Constitution will give the governing and guiding principles on which laws they can make and the authorities. It will have to be different for each First Nation as it decides what it needs to protect its traditional lands.
I do not see the law-making powers being controversial or adversarial with federal or provincial laws. The laws would be restricted to the reserve lands in this bill. We could not make laws that would override the Criminal Code of Canada outside the reserve boundaries. I do not see a conflict.
I believe it becomes a third order of government. When we reach the third order of government, that table will address the issues you have brought forward, such as whether a nation's health standards under its laws have paramountcy over provincial and federal health standards. If those standards are higher than the federal-provincial standards, then the government of the First Nation will sit down with the two other governments and ask how it can be worked out. I believe that the only way governments can ever work together is to sit down and negotiate. If my standards are too high and cannot be met, we may have to compromise, but so will the other governments. That is how I view this.
Senator Watt: It will be a big compromise, as you know.
Mr. Twinn: All law-making becomes a compromise at some time.
Mr. Littlechild: Thank you for those important questions.
I would preface my remarks by saying that as we sit here on the evening of June 22, 2005, it is time to recognize a reality in this country: There are, as the chief stated, three orders of government, not two. The bill is trying to recognize the reality of three orders of government. Recognition of the third order is a contribution to nation building. You are not taking anything away from the provinces or from the federal government. Rather, it is a contribution and the Senate could look at it that way. It is an important contribution that at last, in 2005, would be recognized, but not as a competing interest. One might ask how governments interact. There is already a mechanism in place in some areas where the province and the federal government agree to share powers. It is not a contradiction. They agree to share powers. In some cases they designate exclusive areas. I believe the bill is a contribution to nation building and not the other way around.
Senator St. Germain: Thank you for coming, Chief Laboucan, Chief Twinn and Mr. Littlechild. I had the pleasure of serving with Mr. Littlechild in the House of Commons from 1984 to 1988. It is nice to see him back here.
You should never have left, sir. Your contribution then was significant and I see you are still working in areas that are helping our Aboriginal peoples.
In drafting Bill S-16, every attempt was made to utilize existing self-government bills that were out there, and to pick the best portions of the existing bills. It is not as if we are reinventing the wheel. There are several self-government agreements out there now. In the drafting of this process we attempted to take into consideration previous experiences.
Membership will always be the most contentious issue to deal with. The rest of Canada must recognize that our Aboriginal peoples will have to have their own ability to determine membership. Every time DIAND interferes in this, it makes things more difficult. If we look at Bill C-31, Chief Twinn has clearly indicated that right now they are before the courts on this.
How long have you been before the court on this issue? I know it has been very costly. This is a situation of imposed legislation on our Aboriginal peoples, similar to residential schools and other issues that have had a negative impact.
My contention is that, if they have the inherent right to self-government and the government has given this policy, that should give them the inherent right to determine who belongs to the respective nations.
Could you tell me how long you have been in litigation over this, Chief Twinn?
Mr. Twinn: Most of my adult life; that is for sure. I would say probably 18 years.
Senator St. Germain: I have no other questions.
I appreciate the fact that you have set forward your views in such a direct, concise, precise and excellent manner. The three of you have contributed greatly. This will bring to light the fact that we have consulted with our Aboriginal peoples. Our Aboriginal peoples need and want this type of legislation. They want to assert themselves properly in our society by way of some form of recognition of self-government.
Senator Peterson: In regard to the right to determine your own membership, if one were to be denied membership what right would they have?
Mr. Twinn: In what sense?
Senator Peterson: Who would make the determination?
Mr. Twinn: We have a membership code in place. The membership code is based on community involvement and history. It is multifaceted; it is not blood quantum or anything like that.
The reason we go with that is that, if you were to look back in history, 200 or 300 years ago First Nations were bringing members into their bands without having the legislation to do so. People who were not even native were adopted into bands. That was their custom and practice. The Creator gave us those rights. They were not extinguished.
At the signing of Treaty 8, my great-grandfather was one of the original signatories. After the signing was done, the government came to the head men of the time and asked, ``Who are your members?'' They did not say, ``He is in your band; she is in your band.'' They asked us, ``Who are your members?''
Right off the bat we were determining who our members were. It is the band membership, not one person, that determines membership.
Senator Buchanan: Mr. Chairman, it is almost like being back in the 13-year period between 1978 and 1991, when we discussed all of this.
We are talking about a third order of government. I would like to know what is really meant by that. We discussed this all through the 1980s, too. Are you talking about the third order of government being the federal, provincial and Aboriginal governments, throughout the country? If that is what you are saying, it is a level of government under the Constitution, and it is not there. Are you saying that you have the inherent right, so it is there anyway, and it does not have to be part of the Constitution?
Mr. Twinn: It is my contention that it is already part of the Constitution.
Senator Buchanan: Why?
Mr. Twinn: Under section 35, our inherent rights are protected. Those inherent rights were given to us by the Creator and that was the right to govern ourselves and determine who we are.
Senator Buchanan: I do not want to be argumentative about this, but I just want to be realistic; I am not saying you do not have that inherent right as a First Nation. What I am saying is that it is not recognized by the constituent members of the Constitution of Canada, that is, federal and provincial governments.
Mr. Twinn: I would disagree. It has been recognized; it has not been defined. It has been told to me that section 35 is an empty box. However, it is not the responsibility of the federal or the provincial governments to make that determination of what those inherent rights are. Those inherent rights were given to the First Nations peoples by the Creator and it is up to them to decide what those rights are.
Senator Buchanan: Have the various First Nations determined what those rights are?
Mr. Twinn: Yes, we have. The problem, though, is that the Government of Canada has no mechanism to recognize that. They have no policy. They have no legislation. Bill S-16 is the mechanism for the federal and provincial governments to recognize that order of government.
Senator Buchanan: Does Bill S-16, in your opinion, Mr. Twinn or Mr. Littlechild, change the Constitution of Canada?
Mr. Twinn: Absolutely not.
Mr. Littlechild: Again, Senator Buchanan, I, too, was there in 1978, 1980 and 1983, and all the way through. My observation is this: The fundamental problem, and the reason we stalled in those first ministers conferences, was the difference of view as to what the chief just stated. One group was saying it was an empty box and the other group was saying it was a full box. The empty box view was that, ``You Indians, or First Nations people, do not have a right to self-government unless we give it to you, unless we delegate it to you. It is a contingent right.''
My people are saying we disagree, with the greatest of respect, because in my language, Cree —
[Mr. Littlechild spoke in the Cree language.]
In other words, it is a full box; it is not an empty box.
I believe that is the point at which we stalled in the 1980s, if I may make that observation. It was the difference of view between us as to the source of that right to government, where some say that you can only have it if it is delegated to you, and our elders and leaders are saying no, we already have that right. What is missing is the recognition that that right exists.
Senator Buchanan: May I comment on that? You are absolutely right on the recognition in the Constitution, because you may recall that there was a lot of discussion back in 1979, 1980, 1981 over the sections, and whether this section 35 should include treaty rights, et cetera, and should include specifically the right to self-government. That discussion took place around the table quite often, but it was decided that those words would not be included in section 35. There was a good reason for that, because although quite a few of the premiers disagreed, they finally agreed it should not be in there, and that is why it was not included.
I understand what you are saying; whether it specifically says ``self-government'' in section 35, you are saying that it is part of section 35; but that was part of the big discussion back then and it was decided that those words would not be included in section 35.
I will ask you this then: In spite of Bill S-16, an excellent bill coming from an excellent gentlemen, do you think there should be another federal-provincial constitutional conference specifically on this matter of self-government for the First Nations of Canada? Should we, once and for all, put this matter to bed by amending the Constitution to simply stipulate that there is a third level of government and it is self-government for the Aboriginal peoples of Canada?
Mr. Littlechild: It may not be necessary to have another first ministers conference. I say that because, if this bill does the purpose it was set out to do, which is to recognize the existence of First Nations self-government, the bill should do that.
Senator Buchanan: You are passing by one important aspect. If this bill does what you just said, then I agree. However, do the premiers — and I keep going back to my former life as a premier of 13 years — do the premiers not have some say in this at all? They did through every conference that I attended and you attended.
Mr. Littlechild: Our view is that the Maskwacîs Cree's government is a treaty-based government. Nowhere in Treaty 6 will you find that we surrendered that right to govern ourselves. It is a treaty-based right and section 35 affirms that.
Senator Buchanan: Does that treaty specifically say ``self-government?''
Mr. Littlechild: I would challenge every lawyer in Canada, through the television that you have, to show me under Treaty 6 where we gave up our right to govern ourselves.
Senator Buchanan: Does it specifically say that? Again, I agree that self-government should have been included long ago; but in Treaty 6 is there any wording that this treaty encompasses the inherent self-government right of the First Nations?
Mr. Littlechild: Not from the written text. Again, we have a word in my own language, and I understand it is also under international law treaty-making principles, that means that if you have not surrendered something under treaty, you have retained it to yourself. One of those retentions to ourselves as Cree is the right to govern ourselves. We never surrendered that. We kept that to ourselves.
That is why you will not find it in the treaty specifically in the wording, but that does not mean it does not exist.
Senator Buchanan: Is that not a lot of the argument or discussion that took place all through the 1980s?
Mr. Littlechild: It is, but also some of my elders in the community take great pride in making another observation, and that is this: The Maskwacîs Cree, as a community, have a written constitution, which we wrote before Canada got its own Constitution — in other words, before patriation. In fact, we have a written constitution, but there is also some which we have decided not to write down. Therefore, if this bill before us requires a constitution, we have already done that; we have had a constitution since 1980 on my reserve. Before that, of course, we had the unwritten constitution.
I tell you that story because it is frustrating, as the chief earlier stated, to be coming back here again after so many years of dealing with this issue. I guess the fundamental problem is the difference of view in terms of what it is that comprises that right to govern ourselves, and the source of that right. We say it is treaty-based and it is affirmed in section 35. You cannot show us that we have surrendered it, so it is there. All you need to do is recognize that it exists.
The Chairman: Is it possible to have you conclude now, because we need to move on? We have two other sets of witnesses.
Senator Buchanan: I rarely have much to say.
The Chairman: I want to thank all of you, Mr. Littlechild and Chief Twinn and Ms. Laboucan tonight. Unfortunately, we cannot be longer. Thank you so much for coming to Ottawa from so far.
Senator Buchanan: I have one more question for Mr. Littlechild. You mentioned the United Nations and I know a lot about the United Nations. What is the situation in the United States regarding self-government of various First Nations all through the U.S.?
Mr. Littlechild: Actually, it is a little different from a legislative perspective in my view. One of the differences is that they have an act to deal with self-determination. There is the Indian Self-Determination Act in the United States, so there is a different approach. For example, there is the Indian Child Welfare Act and the Indian Education Act; so their approach is different.
Senator Buchanan: Are they all federal acts?
Mr. Littlechild: That is right. What is important to observe in the nature of previous questions is that last year at the Organization of American States, the U.S. government proposed that the Article 20, which I was talking about on self- government, have a specific inclusion of membership put in as an amendment. That was a very important proposal to add to Article 20.
Senator Buchanan: In the United States, they do not have the kind of self-government that you are talking about.
Senator St. Germain: They have it and we have it with Nisga'a and Sechelt.
Senator Buchanan: As you well know, the Nisga'a could be questionable, but that is for another day.
Mr. Littlechild: If I may have one last word, I do not know how possible this is, but I will be bold and say that perhaps I need to come back before the committee again.
The Chairman: If the committee deals with other self-governing matters, we will ask you back as an expert. Thank you for your presentations.
I welcome our witnesses from the Southern Chiefs' Organization. Chief Daniels, please proceed.
Chief Robert Daniels, Southern Chiefs' Organization: My name is Chief Robert Daniels, of Swan Lake First Nation, Treaty 1, in Southwestern Manitoba, about 110-miles southwest of Winnipeg. I am honoured to be here tonight to be a witness in support of Bill S-16. I thank Elder Dreaver for the opening prayer and the previous witnesses for their presentations.
I was elected to office in December 2004. On January 18, 2005, the Chief in Council of Swan Lake First Nation reaffirmed our treaty position of 1871 that we represent ourselves. Only the Chief in Council can speak for Swan Lake First Nation in respect of treaties and treaty relationships and treaty rights. Part of the declaration that we made was to reaffirm the declaration of the First Nations that was signed by all the First Nations in Canada in 1981. We served notice to the various political organizations that they cannot speak for us or represent us in treaty matters, treaty relationships and treaty rights.
Since January 18, we have received resolutions of support for our treaty position from all the political organizations that previously represented us for our treaties: The Southern Chiefs' Organization; the Assembly of Manitoba Chiefs and the Assembly of First Nations. We took this position because we are currently negotiating our treaty land entitlement — land claims agreement — in Manitoba. We purchased all our lands in our treaty land entitlement settlement agreement and, to date, we have not converted any land.
When we talk about supporting Bill S-16, we see this proposed legislation as another option, rather than going through the costly litigation and negotiations that we have gone through for our treaty land entitlement. That is why we are here this evening in support of this bill. For some reason, other parties do not understand the settlement part of our agreement. It is a treaty land entitlement settlement agreement and, to date, we have yet to settle any lands being converted to reserve status. That is another reason we are here in support of the bill tonight.
I also want to mention to senators that I made an effort back in March, from March 29 to 31, when the Assembly of First Nations held a Special Chiefs Assembly on First Nations Governments in Vancouver, British Columbia. I asked the Clerk of the Senate to send copies of Bill S-16 to that assembly and they were delivered. I was able to provide copies to all the chiefs. We wanted to come to a resolution in support of Bill S-16 at the assembly, but we were advised not to put the resolution on the floor and to withdraw it. We were advised that it would be further tabled at the AFN assembly in Yellowknife in July. We will introduce another resolution in support of ill S-16 at the general assembly in July in Yellowknife.
I want it on the record that there were previous concerns regarding consultations. Every effort was made by the proponents of Bill S-16 to distribute and make known the contents of Bill S-16 to any First Nations that are willing to look at the bill as an alternative to litigation and negotiation. We have made every effort to do that. We did not have a duty to consult, but we made every effort to let people know that the bill exists and that anyone who wants to make changes, additions or amendments to the bill has every right to do so. I want that on the record as well.
On March 8, I attended Senate hearings on Bill C-20. I tabled with the clerk of the committee the treaty position of Swan Lake First Nation.
Part of the reason we adopted our treaty position was that, while we were negotiating our treaty land entitlement, the policy of the federal government under the ``additions to reserve'' policy was a big problem for us in Swan Lake First Nation. We have third party interests who seem to think that they have a higher status than we do as treaty First Nations; municipalities seem to think that they have a veto over our land settlement agreement and that they should have zoning rights to our lands that are to be converted to reserve status.
I know there were some questions tonight regarding overlapping jurisdictions or concurrent powers between provinces and federal governments, but, somehow, municipalities seem to think that they have more powers than we do.
Also, under the ``additions to reserve'' policy that is there now, the federal government has insisted that the lands that will be converted to Swan Lake First Nation must be cost-neutral. I do not know where that policy came from. They say that it was because of joint consultation with the Assembly of First Nations that those lands will be cost- neutral. However, there is nothing in our agreement to say those lands will be cost-neutral. That is part of the reason why we are supporting this bill. We see the alternative as being enabling legislation that will recognize our inherent right to govern ourselves within Swan Lake First Nation.
We also have resolutions of support for the bill from the eight First Nations within the Dakota Ojibway Tribal Council supporting Bill S-16 going to back to when it was Bill S-38. We have been supporting this legislation since then.
We also have a resolution from the Southern Chiefs' Organization of which Grand Chief Chris Henderson is the grand chief of 36 First Nations in southern Manitoba.
There was, I believe, reference earlier to page 2 of the bill, clause 2:
(1) The definitions in this subsection apply in this Act...
(b) lands reserved for the Indians of the First Nation within the meaning of Class 24 of section 91 of the Constitution Act...
I wish to point out that in Swan Lake First Nation, for example, we still have a number of outstanding land claims that have not been settled. When those claims are settled, when that land becomes reserve status, they would fall into this category and be rolled under the legislation at that time. That is my understanding of how the bill would work.
Our only concern in regard to the bill is that it appears to give jurisdiction to the federal and provincial courts to enforce laws on First Nations subject to its Constitution. If a First Nation decides not to prosecute an offender, the federal and provincial courts can prosecute. That is the only concern we had in terms of the drafting of the proposed legislation. We do not see federal and provincial courts coming in and interpreting our laws within Swan Lake First Nation. There would have to be changes or redrafting to this legislation to ensure that that does not happen.
Federal oversight in general is inconsistent with the concurrent international norms that support indigenous self determination.
In closing, once our council and our membership have the opportunity to fully review and discuss with the proponents all the details of Bill S-16, Swan Lake First Nation will be in a better position to recommend improvements or changes to the bill.
In Manitoba, we have the Framework Agreement Initiative that was signed in 1984. I believe that cost over $47 million. It is a self-government agreement that has been in place for the last 10 years. It is only in the last month that our band members have had a chance to look at that legislation in terms of what is there. Actually, it is not legislation; it is a framework agreement that was signed in Manitoba. Last month was the first time that our band members ever had an opportunity to review what has happened with the rest of the Framework Agreement Initiative.
The position that we have taken in Swan Lake is that we want to look at all initiatives, whether legislative or agreements in principle. Our band members have a right to know what is in there. At the end of the day, they are the ones who will be ratifying any type of arrangement that is entered into. That is the position we have taken from Swan Lake First Nation.
I reiterate our position is that only we speak for ourselves and only we represent ourselves when it comes to these matters. Certain decisions in the past have been made that are now affecting us in our First Nation that we disagree with. It has cost us a significant amount of money in terms of settling our treaty land entitlements. We have incurred over $2 million in costs because of the policy changes that affect us directly in our community.
We want to be able to right the injustices done to us in terms of whether it is legislation or policies. We want to correct those historic wrongs. That is part of the reason we are supporting Bill S-16. We want to restore the rights that have been suppressed and denied to us in Swan Lake First Nation. That is part of the reason we are here tonight to support Bill S-16.
I did have a presentation that I wanted to table with the Senate, but I understand because it is not in French I am not able to table it, so I will have to get it translated.
Senator St. Germain: I move that we table Chief Daniels' entire presentation. Also, I move that we table Mr. Littlechild's document. He left some of it out in trying to expedite the process of delivery. Both of these documents were given to us tonight. If the chairman has no objection, we could table both of them.
The Chairman: Is it agreed, honourable senators?
Hon. Senators: Agreed.
The Chairman: The motion is carried to have the documents form part of the records of our committee.
Chief Henderson, please proceed.
Southern Grand Chief Chris Henderson, Southern Chiefs' Organziation: Thank you very much, honourable senators, for giving me this opportunity to humbly appear before the Standing Senate Committee on Aboriginal Peoples.
The Manitoba Southern Chiefs' Organization represents 36 First Nations in Southern Manitoba. These First Nations are composed of the Ojibway, Dakota and Cree First Nations, with a population of roughly 70,000 First Nations people on and off the reserves located in Southern Manitoba.
As stated by Chief Robert Daniels from Swan Lake First Nation, there is a resolution of support that was adopted by our southern chiefs on March 23, 2005 in support of Bill S-16. I do believe that the committee should have a copy of that resolution. I did send a request back on March 23 to appear before this committee and I did attach a copy of that resolution supporting Bill S-16.
Before I read my statement in support of the bill, I would also like to state that it is an honour to speak in support of Bill S-16. I know that in my former life as a technician working for the former Grand Chief Margaret Swan, I did have the opportunity to briefly meet and chat with Senator St. Germain on a few occasions at Fort Carleton during the Treaty 6 ceremony, as well as in Lockport, Manitoba.
Why the southern chiefs of Manitoba decided at that time to support Bill S-16 was in response to the Liberal government's proposal to amend the Indian Act with the former Bill C-7, known as the First Nations Governance Act. At that time, a lot of people had asked what the alternative was. What else was available to First Nations for consideration? Of course, waiting in the wings was this bill, Bill S-16.
At that time, we had the opportunity to fully review the contents of the bill. One of the appealing aspects of the bill was the fact that it was optional; it was not prescriptive; and, more important, it was initiated by a First Nations person, the late Senator Walter Twinn.
In terms of our analysis of Bill S-16, we know that it will apply only to recognized land-based First Nation communities; it will provide for a process by which a First Nation community may opt to come under its provisions by following the steps provided, and it recognizes the jurisdiction of First Nations that do so. It also points out that a referendum must be held on the subject and proposal, including a constitution that must be put before the electors. The constitution must provide for accountability and for limits on the law-making powers of the First Nation governments.
First Nation lands are named Aboriginal lands. They include reserve lands; lands acquired or owned by a First Nation, before or after it comes under the bill, that are declared by the Governor-in-Council to be its lands; treaty or land claim lands confirmed through negotiations or through the successful assertion of a claim; and any lands acquired by the First Nation before or after it comes under the act as compensation for the expropriation of other lands.
The bill recognizes the jurisdiction of First Nations to legislate in specified fields and reconciles that jurisdiction with the jurisdiction exercised by federal and provincial governments. The limits of a First Nation's jurisdiction are set out in its constitution, and its law-making powers are limited by several factors:
1. Except in very limited areas, they are applicable only on the lands of the First Nation.
2. They do not override federal laws related to compelling legislative objectives consistent with the fiduciary relationship between the Crown and Aboriginal peoples.
3. They may be limited by the First Nation's constitution.
4. In certain areas, such as environment, they are specifically limited.
5. The penalties that may be established are limited.
Bill S-16 contains a draft sample constitution, but a different constitution may be adopted provided it is consistent with the bill and covers specified subject matters.
There are potential benefits: First, the First Nation has exclusive jurisdiction over its own laws in relation to the laying of charges and the prosecution of persons who contravene its laws. Second, Bill S-16 sets forth the relationship between the First Nation and the province in which it is situated. Third, it also provides for the management of the First Nation's land and finances. Fourth, Bill S-16 has the potential, as is stated throughout the bill, to address injustices and to correct current and historic wrongs and, most significantly, to recognize, restore and implement First Nations' rights that have been suppressed and denied.
Bill S-16 does offer some useful guidelines and statements, which our First Nations may want to incorporate in future First Nations self-government agreements or self-government recognitions and acknowledgement acts or bills. A few of the preamble whereases are interesting and may prove beneficial in future debates and negotiations:
(1) whereas the Royal Proclamation of 1763 recognizes self-governing peoples living in the territory of Canada before Europeans arrived;
(2) and whereas history records that the Crown entered into legal relations with certain nations, tribes and bodies of Indians;
(3) and whereas these relations were premised not on conquest;
(4) and whereas Canada would be strengthened by a renewed relationship with the First Nations that reconciles Canadian sovereignty with indigenous self-determination and self-government.
Other areas that may need to be considered within the current draft of the bill include some of the following:
First, determining membership and status. One of the basic principles upon which any nation is built is the necessity to determine its citizens or members. This principle has long been denied to First Nations within Canada by the federal government. If the purpose of this bill is to provide for the Crown's recognition of self-governing First Nations, then the issue needs to be addressed more thoroughly in the current bill. The First Nations who agree to be a part of this agreement have to be allowed to determine their own citizenship.
Second, First Nations' constitutions. The role of the Auditor General in the development of First Nations' constitutions needs to be addressed. As contained within the bill, the requirement of this government office is somewhat paternalistic. Further, while the Auditor General requirement is one of opinion only, the concern is not to allow the opinion requirement to develop into a condition precedent through legislative or parliamentary convention.
Third, First Naions members who reside off reserve. Any new developments or benefits have to be applicable to First Nation members who reside beyond the reserve boundaries. In many First Nations, it is not uncommon to have a huge proportion of their membership population residing off reserve. In many of these situations, this is due to necessity because of education needs and opportunities, housing shortages, high unemployment rates and the lack of any meaningful economic opportunity on First Nations. Any development and harmonization of laws has to consider this situation.
Fourth, the Indian Act is restrictive and destructive. It controls too many aspects of our lives; it is discriminatory, paternalistic and, for the most part, is a racist piece of government legislation. The need for ministerial approval in the development of local First Nation needs must be removed. One nation's internal laws do not require the approval of another nation's representative. That is a blatant violation of the objective of this bill.
Fifth, frustrations with government bureaucracy. The reporting requirements that First Nations have to comply with to receive program funding are too great in volume. It is burdensome and often results in First Nations being deprived of funding or being penalized because of this requirement. In many cases and situations the information that is requested by government departments is information that already exists within the current system — for example, housing or education-related statistics -— and these often have to be submitted on an annual basis, even though the department is fully aware of the lack of developments from the previous year.
That basically concludes my prepared statement speaking in support of Bill S-16. Once again, our southern chiefs have mandated me to speak in support of the bill and that is why I am here today.
Senator St. Germain: I do recall our meetings in Lockport, Chief Henderson. The areas of concern were the Auditor General and citizenship. Citizenship is something we wrestled with during the drafting of the bill. That is why, before the committee here, I wanted you to make some strong recommendations in both these areas. We brought in the Auditor General for an opinion only. I hope this does not become a paternalistic part of any process. The committee is looking for a person that personifies accountability. Whether that was the right thing to do, it was not done to offend Aboriginal peoples.
We will review your suggested amendments, which could possibly make part of the legislation better. If anything else comes up that you think would assist in making the bill a better piece of legislation for our Aboriginal peoples in asserting their inherent right to self-government, certainly we would be grateful for your input.
I have been asked by the people that worked on this bill to point out one thing for clarification. Section 91.24 provides that the federal government has the authority to make laws on behalf of our Aboriginal peoples. Bill S-16 is proposed federal legislation on behalf of our Aboriginal peoples so they can recognize that Aboriginal peoples already have the right to self-government.
This is controversial, complex and often hard to understand. It is important that we understand that the government has the right to make legislation, and that is one reason we are trying to bring something forward that will work.
I thank both of you for your presentations. Perhaps other senators have questions or comments.
Senator Peterson: Chief Daniels, in your presentation you referred to the land treaty entitlement as cost-neutral. What does that mean?
Mr. Daniels: It means that a consultation took place a few years ago with political organizations that purport to represent First Nations. Usually a consultation occurs in Ottawa and we do not hear about it until months later. It will come to the table to the Chief in Council that a consultation has taken place between people in Ottawa and that a policy has been changed.
The ``additions to reserve'' policy was changed and the term ``cost-neutral'' was added to the policy. It was not in there before. In other words, we purchased the lands that are part of our treaty land entitlements and, within 90 days, those lands were supposed to be given reserve status. Once they have reserve status, Canada is saying that they have to be cost-neutral to Canada such that they will not cost the federal government any more money.
That is not in our agreement. The agreement stipulates that we are entitled to all other programs once the lands have reserve status. Does that clarify your question?
Senator Peterson: Yes.
The Chairman: Are there further questions for these witnesses?
Senator Watt: I kept hearing an echo. It is a bit offensive for us to hear people saying ``our Aboriginal peoples.'' We are not the property of anyone. I would like to get back to the point that I was trying to make earlier. We were talking about having our own instrument and being able to use that to formulate laws for ourselves and for no one else. We want no outside interference from the federal and provincial government in that process, if I understand what people are saying.
We should be concerned about the general laws of application. The provincial governments normally pass general laws of application on how we should conduct ourselves. There is also a federal law that deals with the standards. At times, we are affected by federal laws when they take the approach that one law fits all, not only Aboriginal people but also non-Aboriginal people living outside the city.
How do we deal with such laws? If we end up with our own governing institutions with clearly stipulated powers, then that is our inherent right flowing from section 35. Should we look at it from the standpoint that federal law- making should also be stopped if we do not want interference from outside government? At the same time, we will have to have that validated in law by the federal government so that we can operate at the same level.
I would like you to comment on those two aspects. I think that is the crux of the issue. I had wanted to address this with Mr. Littlechild, but the opportunity did not come up. Is there another way? I was going in that direction, because I have been working with the government most of my life. I am 61 and have been in the Senate for 21 years. I do not see that our question of rights will be dealt with, even though it is in the high level of order — section 35 of the Constitution.
The government is reluctant to implement section 35. We have to find a way to put pressure on them to implement it. It is an advantage for them but it is also an advantage for us. This is unfinished business, so far as I am concerned.
I was one of the principal negotiators back in 1982. Some people sitting here know that we have dealt with it. Senator Buchanan has mentioned it. There is much work ahead of us. I am not entirely sure about Bill S-16, without addressing the matter of section 35. We might come up short. How do we improve Bill S-16? I supported the bill when it was introduced in the Senate because I value the concept of being able to formulate enabling legislation as an empty shell.
Senator St. Germain: Senator Watt, if I may quote Stanley Knowles: ``Courage, my friends; it is not too late to make a better world.''
The Chairman: Do either of you gentlemen wish to respond to the question?
Mr. Daniels: I am not sure if you are referring to the Indian Act in terms of section 88; is that what you are referring to?
Senator Watt: I am not specifically referring to anything in particular, but rather the attitude of the government and knowing that certain pieces of legislation are in certain places that are not supposed to be working for us; they are working against us. That is where I am coming from.
Mr. Daniels: There is a provision on page 22 of the bill, in clause 34(1) (a), (b) and (c) that addresses those concerns.
Senator Watt: Do you want to highlight what that says? I do not have it in front of me.
Mr. Daniels: Yes, clause 34(1) reads:
34. (1) Except as otherwise provided in this Act, a law of general application of a Province applies to a recognized First Nation subject to and except to the extent that it is inconsistent with,
(a) any treaty, treaty right, Aboriginal right or land claims agreement affecting it;
(b) the laws and constitution of the recognized First Nation; and
(c) this Act or any other Act of Parliament.
Senator Watt: How will that work in practice?
Senator St. Germain: It is like anything else. It is written in law so that, hopefully, they will respect the legislation the way it is written.
Mr. Daniels: The status quo right now is the Indian Act, and that is not working.
Senator St. Germain: That is right.
Senator Watt: Are you saying that this law will apply to the First Nations; is that what you are saying?
Senator St. Germain: Except as otherwise provided.
Senator Watt: That means that you would have to deal with what applies and what does not apply, if you are talking about powers, and what powers will be inherited under the Indian Act institutions.
Senator St. Germain: It says:
... except to the extent that it is inconsistent with,
(a) any treaty, treaty right, Aboriginal right, or land claims agreement affecting it.
Senator Watt: Section 35 is not part of the Charter of Rights and Freedoms. The Charter of Rights and Freedoms has a potential to have a conflict with Aboriginal rights under section 35. That is one of the reasons why we have a non-derogation clause, section 25. This should have been addressed more sufficiently, if we do not want that to be a hurdle down the road.
Mr. Daniels: Those powers are addressed within the constitution that we will be developing within this legislation.
Senator Watt: I will leave it at that. Maybe we can revisit that another day to see if we can improve that somehow. I am not here to destroy what you have done and brought here up to now. I want to help to ensure that it becomes workable in the committee in practice.
Senator St. Germain: We will work with our drafters to bring clarification to your office.
The Chairman: I wish to thank our witnesses, Chiefs Henderson and Daniels. Would you like to make one last comment?
Mr. Daniels: In terms of protocol within our First Nations, our elders usually speak first. I did not feel good about speaking ahead of our elders tonight. I thought we had an order of precedence in that our elders would be here first before us. Time being the way it is, they are not allowed very much time. Maybe that could be considered in the future, so that the elders would be allowed to speak first.
The Chairman: Thank you for pointing that out to us. I come from the North and there is tremendous respect for the elders. They do have the option generally to begin the meetings, to pray and then speak their minds. That is the practice in my area. I am sorry we did not follow that practice here. Thank you for drawing that to our attention. In future, we will be mindful of that.
We will now hear from the elder and we will do our best to make him comfortable and at ease for his presentation to our committee.
[Interpretation]
Elder William Dreaver, as an individual: Honourable senators, I am glad to have been given the chance to speak.
I have listened often to the elders ever since I was a child. I have heard many elders speak about when the treaties were negotiated. The Queen with whom we negotiated the treaties never gave us that land. The people of that time held that back for themselves.
Ever since the time those agreements were made, much of the negotiation was done on their terms because they could read and write. I have heard the elders speak ever since I was a little child. I cannot read or write, but, because of our oral tradition and teachings, I remember the many things they talked about.
Today, there are many governments that have come about since that time. When the treaties were negotiated, they received more benefits from those treaties because everything was done on their terms and in their language.
When the treaties were negotiated, from my understanding of what the elders have stated in the past, the land that was given in the treaties was only enough so that their people could use it for farming purposes. The land was loaned to them for use. If you look at it today, they have taken everything, and not just what was agreed to in the past by the elders and the people who negotiated the treaties.
As to the revenue that came out of those negotiations on this land, we never really got anything out of it. When the treaties were negotiated, there were no provinces. All the people who took part in negotiating the treaties should have benefited from them, because an agreement was made before the provinces came about.
With regard to living things like the animals, the elders had talked about how the animals were never surrendered to any government. It was a form of livelihood for our people, so they held those things back for themselves because that was their survival. If you look at it today, they put them in pens throughout the country, and they benefit from that. They have elk and deer locked up in pens, and yet the elders never surrendered our right to those animals.
I did not come here to argue with anybody or to be disrespectful to anybody. I just came here to share my views and understanding of what the elders had talked about and what is happening today. The elders have spoken about this for many years. It has been passed down through generations. I have never heard one elder say that, when the Europeans first came here to this land and negotiated the treaties with our people, the First Nations agreed that the people who came here would own us. It was understood by our people that it should be a partnership and a fair agreement of understanding to work with each other, not for them to come and own us.
I understood the elders to say, when they talked about the treaties, that we should not have paid any taxes as part of the treaty agreement. I am sharing this with you because it has been on my mind for a long time. I want to talk about what I have felt and thought about over the years.
[Native language spoken]
[English]
I still have it in my mind because I never learned to write. That is who I am. When I speak too much, I use this borrowed language, although I want to use my own language.
[Native Language Spoken]
[English]
I ran for chief. The elder chose me to run for life chief. I got beaten by one man but he was my friend. He passed away four or five years ago. Two men ran for life chief and one got beaten; one will go on council with the elders. No women ran for chief that time; only men ran. He was my friend. I did not even ask any person to help me to lead, because that man was my friend and I trusted him. He beat me, but he passed away. I was supposed to be life counsellor on that reserve; I do not talk about it on the reserve, but people know about it.
I can speak a bit of your language, but really I want to use my own language. Maybe that way God will listen to me. All of us speak different languages, but my elders told me we are all brothers and sisters; that is what I would like to say.
I have been working hard all my life. My dad died in 1953, when he upset a tractor. One week before that he told me he was going to die. I do not know how he knew he was going to go, but he knew, and he was killed. He told me to keep on working where I live.
I have been here many times for meetings, but I never came here to this building. I am afraid for my family because too many things happen. Years ago, when you got up and it was a nice morning, it would stay that way all day. Now, it does not happen that way.
I can use your language. I think of myself and of you people and I know we are supposed to work together. God made this thing happen. He makes the languages for us. When I speak about what I see on the reserve, I feel like crying. There is a law for every step. Your leaders and you people make the law. We had our own law years ago that my elders told me about. That is what my dad told me. We should try to work together. We should ask God to help us to work together to have a better world with less sickness and other bad things. I do not know what will happen in the future. Who will run the world? I am afraid. That is all I will say. I hope you will give me a chance again if you have a meeting. That is what I am asking. Thank you for listening.
The Chairman: I thank you, Mr. William Dreaver and Mr. Marshall Dreaver. I am glad you were able to give us your message. It is important that Parliament and the people hear what you have to say. It is often difficult because you speak your language and know a limited amount of English, but you did well. The basic concepts that you spoke to are important for all of us to hear. I thank you for travelling such a long distance to be with us tonight.
Would you be willing to answer our questions?
Elder Dreaver: I will try.
Senator St. Germain: Mr. Chairman, I would like to reiterate your words in thanking Elder William Dreaver, his son Mr. Marshall Dreaver and Mr. Littlechild for assisting. I met Mr. William Dreaver at Fort Carleton a few years ago on the 125th anniversary of the treaty. I know what kind of contribution Mr. William Dreaver has made to the community he lives in and the reserves he talks about that bring tears to his eyes because of the life that some are having to live. It is important we understand this.
What Elder Dreaver was saying at the beginning, about the people of Treaty 6, is that the treaty which was agreed upon has not been lived up to. The lands that had been negotiated at the time are not part of the lands that they actually own at present, and yet they never relinquished those rights.
It is important for Canadians to see by way of television that these people have been denied their rights. These were rights that were negotiated in good faith. The strength of Elder Dreaver is that he remembers. He remembers what elders before him said, what his father told him and what his grandfather told him. This is what this process is about.
Bill S-16 is not about me or anyone else. It is about doing what is right for the Aboriginal peoples so that they can take their rightful place.
Why should an elder come here and tell us that when he looks at life on the reserve he has tears in his eyes? As a country we have a huge responsibility in making certain that these people have their rightful place, whether Bill S-16 is part of it or not.
The presence of Elder Dreaver here is significant in educating our Canadian population as to what truly exists on some of our reserves and our treaty lands in Saskatchewan and other parts of the country.
I wish to apologize to Elder Dreaver that he was not first on the list. We should have respected you. I wish to thank you for the prayers you brought forward at the opening of our hearings.
I really have no questions; I just have a great love for you, sir, because I know what you have done for your people. I know how sincere you are in your love for the rest of us as well.
Senator Buchanan: I agree with Senator St. Germain that in a way it is too bad Elder Dreaver was not first to appear here tonight. However, I believe that it is all right that you were not because you were first with your prayers. That is probably more important than anything else we have talked about here tonight.
Second, it might be fitting that you were the last, because you brought us back to the realities of life: the land, the history, and working together. We all recognize the wisdom of your words. I enjoyed everything you said. Again, we want to thank you for being here.
The Chairman: That concludes our business.
Elder Dreaver, would you help us by saying a prayer? If we can just end our meeting and go to bed with a prayer, that will help us and it will be a good example, too, for our country. While we work, we also need to pray and thank God. If you will honour us with a prayer, we will all stand up and end with a prayer from you.
[Traditional Prayer]
The committee adjourned.