AAND Committee Meeting

STANDING COMMITTEE ON ABORIGINAL AFFAIRS AND NORTHERN DEVELOPMENT

COMITÉ PERMANENT DES AFFAIRES AUTOCHTONES ET DU DÉVELOPPEMENT DU GRAND NORD

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, November 4, 1999

• 0905

[English]

The Chair (Mrs. Sue Barnes (London West, Lib.)): Good morning, bienvenue, aama hiihlukw.

I call this meeting to order. The order of the day is Bill C-9, an act to give effect to the Nisga'a Final Agreement. We have witnesses from the Nisga'a Tribal Council. Dr. Joseph Gosnell is the president, Edmond Wright is the secretary-treasurer, Nelson Leeson is the executive chairman, James Aldridge is legal counsel, and Harry Nyce is senior resources negotiator.

Welcome, everybody.

Welcome, members.

We'll start. Our meeting will go from 9 o'clock until just before 12 o'clock. Before 12 o'clock, I have a few announcements to make on administrative affairs for our travels on the road, so we can take about the last 15 minutes to do that very rapidly.

I know the Nisga'a have waited a long time to appear before us. I have been advised that they have a presentation they are going to split between four representatives. It will go for the first part of the morning, and then we will go to our normal rounds of questioning.

Please begin, Dr. Gosnell.

Dr. Joseph Gosnell (President, Nisga'a Tribal Council): Thank you, Madam Chair.

To bring a bit of humanness to the entire process, I'd like to begin by providing you with some personal information about what I do in my life, other than being here as the president of the Nisga'a Tribal Council.

My Nisga'a name is Sim'oogit Hleek. I'm married to Adele, and she and I will be celebrating our 43rd wedding anniversary this coming April. We have seven children and 16 grandchildren. She and I have always resided on reserve, first in the community of Gitwinksihlkw, and today in the community of Gitlaxt'aamiks.

I'm a product of the residential school system. I went to St. Michael's Residential School, located in Alert Bay, near the northern tip of Vancouver Island.

For those of you who may have seen the 1910 and 1913 photographs of the original Nisga'a Land Committee, you may have looked at the names, and I'm very pleased to say two of my great-great-grandfathers are in that photograph. That's how far back our family goes in trying to resolve this particular issue.

I have 30 years' experience as a commercial fisherman. I hold a commercial salmon licence, a vessel, and a herring licence as well. I've been elected numerous times as a band councillor. I was elected once as chief councillor of the community of Gitlaxt'aamiks. I spent many years as the executive chairman of the Nisga'a Tribal Council, and in 1990 I was elected the president of the tribal council.

I'm very pleased to say I'm the recipient of the Order of British Columbia and the Humanitarian Award, awarded to me by the Canadian Labour Congress. We also have their undying support. I have two honorary doctorate of law degrees, one from Royal Roads Military College in Victoria and the other from Open University, located in Richmond.

• 0910

I was adviser for Canada during the negotiation of the Pacific Salmon Treaty for many, many years, and following the signing of that document by the two countries, I was appointed alternate commissioner. Three years after that, I was appointed a full commissioner, representing Canada during those talks.

I'm also a former adviser to the Pacific Regional Council, which is the senior advisory body to the Minister of Fisheries and Oceans. For your information, Minister Robert Nault is number 17 in the faces we have faced across the negotiation table over time.

As the morning goes on, additional information will be provided to you.

[Witness speaks in his native language].

The Nisga'a Tribal Council welcomes the opportunity to appear before this committee in order to discuss the Nisga'a treaty, also referred to as the Nisga'a Final Agreement.

As you know, the treaty represents the culmination of more than a century of our people's struggle for a just and honourable settlement of the land question. Throughout this struggle, we have consistently advanced our aboriginal title and our right to govern ourselves within Canada.

The agreement before you does not include everything we wanted. It is a compromise document. But we have always known compromise is necessary if negotiated agreements are to be reached.

We are proud of the treaty, and we look forward to its early ratification by Canada.

Many of you are aware of our nation's long journey. It is now 112 years since our ancestors, together with chiefs of the Tsimshian Nation, travelled to Victoria, only to be turned away, their requests for treaty negotiations rejected by the provincial government of the day.

On May 21, 1913, our people lodged a petition with His Majesty's Privy Council in London seeking a determination of our rights in and to our ancestral homeland. Accompanying the petition was a statement that was unanimously adopted at a meeting of the Nisga'a Nation, held in the community of Kincolith on 22 January 1913. That statement included the following:

We are not opposed to the coming of the white people into our territory, provided this be carried out justly and in accordance with the British principles embodied in the Royal Proclamation. If therefore, as we expect, the aboriginal rights which we claim should be established by the decision of His Majesty's Privy Council, we would be prepared to take a moderate and reasonable position. In that event, while claiming the right to decide for ourselves the terms upon which we would deal with our territory, we would be willing that all matters outstanding between the Province and ourselves should be finally adjusted by some equitable method to be agreed upon which should include representation of the Indian Tribes upon any Commission which might then be appointed.

That is the lead-in paragraph to the 1913 petition.

Our people have stood by that approach ever since. We have insisted on a treaty in accordance with the principles set out in the Royal Proclamation of 1763, we have taken a moderate and reasonable position, and we claim the continuing right to decide for ourselves the terms upon which we will deal with our territory.

• 0915

Unfortunately our petition was never considered by the Privy Council.

In the same year as our petition was brought, Duncan Campbell Scott became deputy superintendent-general of Indian affairs. Mr. Scott believed the correct policy to be taken by the Government of Canada was the assimilation of our people. He is quoted as saying:

I want to get rid of the Indian problem. Our objective is to continue until there is not a single Indian in Canada that has not been absorbed into the body politic and there is no Indian Question and no Indian Department.

His policies were reflected in the administration of the Indian Act for many years thereafter, with the tragic results of which we are all aware. No doubt he considered that he was pursing a policy of equality.

In 1927 your predecessors in Parliament made it an offence to raise money to prosecute any claim of an Indian tribe or band, including a claim in respect of the land question. They also banned our potlatches, our traditional feasting system. For many years the land question, like our culture, was forced underground.

But the land question did not go away. First nations were not assimilated, despite the Indian Act, despite the residential schools, the poverty, the years of watching our land and resources disappear in order to make other people wealthy. We survived, and today the Nisga'a Nation stands before you, proud of our survival, proud to enter into this new relationship defined by the Nisga'a treaty.

The modern era of our struggle begins with the birth of the Nisga'a Tribal Council in 1955. It inherited the task of the Nisga'a Land Committee of a generation before. Obviously the task has not been an easy one.

In 1967 we were faced with the continued refusal of both the federal and provincial governments to negotiate a settlement of the land question. Accordingly, we commenced the litigation known today as the Calder case, after our president of the day, Dr. Frank Calder, now our president emeritus.

While our case was working its way through the law courts, the federal government, under the leadership of Prime Minister Pierre Trudeau, introduced the famous white paper to which reference has been made during the present debate. In the eyes of many, the white paper embodied a policy not of equality but of assimilation and denial of our rights as aboriginal people. That policy was rejected.

Moreover, its fundamental premise that aboriginal rights are nothing more than “historical might-have-beens” was rejected by the Supreme Court of Canada in its decision in Calder, handed down in 1973. The court ruled that aboriginal title exists at common law, regardless of any grant or act of recognition by the Crown.

Even though the court divided evenly on the question of whether our aboriginal title had been extinguished prior to Confederation, the decision led Prime Minister Pierre Trudeau to observe: “Maybe you have more rights than we thought you did”. More importantly, it led to the establishment of the federal government's comprehensive land claims policy in 1973, under which many other aboriginal people have negotiated and reached land claims agreements or modern treaties.

• 0920

Negotiations between Canada and the Nisga'a Tribal Council commenced in 1976, more than 23 years ago. In the early years the Government of British Columbia attended only as observers, a fact that made final agreement impossible. In the early 1980s the Nisga'a participated with other aboriginal groups in persuading governments to include what is now subsections 35(1) and (2) in the new constitutional package. Since 1982 it has been beyond all doubt that the aboriginal people in Canada do have rights in the Constitution Act, 1982, a part of the supreme law of Canada.

Those provisions were accompanied by another provision, section 37, which required a first ministers conference at which there would be discussed the identification and definition of the rights of aboriginal peoples to be included in the Constitution of Canada.

That first ministers conference, in which the Nisga'a Nation participated as a member of the Assembly of First Nations, led to the addition in 1983 of subsections 35(3) and (4) to the Constitution Act, 1982. Those amendments mean that subsection 35(1) recognizes and affirms rights in future land claims agreements in the same way as other treaty rights. Land claims agreements were finally understood to be modern treaties, and subsection 35(4) puts it beyond all doubt that aboriginal and treaty rights are guaranteed equally to male and female.

Of course, since the Calder case the courts have ruled consistently in favour of the continued existence of aboriginal and treaty rights in such cases as Sparrow, Gladstone, Delgamuukw and Sioui, to mention only a few. In almost every case the courts have urged that negotiation rather than litigation is the proper means to achieve the reconciliation of these historic ancestral rights with the sovereignty of the crown and the reality of a modern Canada. At all times the courts have said the honour of the crown must be maintained.

So we persevered, Madam Chair, with negotiations despite endless hours of frustration, reversal and apparent lack of progress. Many of us, as you see today, have grown old at the negotiation table.

Then, in 1990, the Government of British Columbia, under the Social Credit administration of Premier William Vander Zalm, finally agreed to join the negotiations. It still took six years of gruelling talks before our efforts resulted in the agreement in principle signed in March 1996, three and a half years ago.

An intense public debate about the contents of our agreement has carried on ever since. During the almost two and half years following the agreement in principle, while we were negotiating the final agreement, the agreement was discussed and analysed. Public hearings were held by a provincial legislative committee, news stories and editorials were written and broadcast, academic articles were published, and numerous public meetings were held. Few of the legislative initiatives in recent history have received the detailed public attention that has surrounded our agreement.

Almost a year and a half ago, in July 1998, we reached the final agreement and commenced this long process of ratification. Our people ratified the treaty almost exactly one year ago. British Columbia ratified the treaty in April, following the longest legislative debate on any issue in the history of British Columbia. Now it is Parliament's turn.

• 0945

Madam Chair, I wish to turn it over to one of my colleagues, Nelson Leeson.

Mr. Nelson Leeson (Executive Chairman, Nisga'a Tribal Council): Thank you very much, and good morning to you. It's an honour for me to be part of these historic hearings that are taking place here.

I'll first tell you a little bit about myself. I come from the raven clan or fratry. I hold an hereditary chieftain name of Axlaawaals within that tribal structure. As the president has stated, I have grandfathers who were on the original land committee. As a matter of fact, Arthur Calder, my great-grandfather, was one of the first chairmen of the tribe.

I have five children, and my significant other has four, so we have a total of nine people we're responsible for and are looking very much forward to all of them enjoying a future, a future that is fair, a future that is considerate, and indeed, a future where they can walk with dignity, respect, and in prosperity with the rest of Canadians.

In regard to the present debate, we have come to Ottawa many times over the years, and in particular over the last 10 months. We have met with members of Parliament and senators, with cabinet ministers and parliamentary interns. We have participated in seminars and news conferences and we have listened to the current debate since its commencement.

The first and most important thing to say about this debate is that we acknowledge and appreciate the overwhelming support of the Nisga'a treaty from members of four of the five parties represented in the House of Commons. While we noted the somewhat cynical explanation of this support suggested by the leader of the official opposition in his speech to the House October 26, 1999, we think that support from political parties as diverse as the Liberals, the Bloc Québécois, the New Democratic Party and the Progressive Conservatives vindicates our view that the Nisga'a treaty is truly a non-partisan issue, one that rises above the ordinary back and forth of everyday politics and shows the world that the people and governments of Canada know how to achieve a fair and reasonable accommodation with aboriginal people.

We also acknowledge that in our parliamentary system there is an important place for opposition and debate, and it is the right of the official opposition to oppose government initiatives, so we came willing to participate in this debate. However, we must also say that our observation of the debate has led us to realize that there seems to be not one treaty under debate, but two.

The first is the treaty that we negotiated and that our people and Her Majesty in right of British Columbia have ratified. It is a treaty that has been tabled before Parliament and that passage of Bill C-9 will ratify. It is a treaty referred to by government and the three opposition parties other than the official opposition.

The other is a make-believe treaty, one that we never sought and would not accept if it were offered to us. It is a treaty described by the official opposition, the British Columbia Liberal Party, and a variety of editorialists and other individuals.

What are the contents of the make-believe treaty? It can be briefly described, in no particular order, as follows.

The make-believe treaty undermines the Canadian Charter of Rights and Freedoms. It violates the equality of aboriginal women, perpetuates the Indian Act, denies Nisga'a citizens individual private property, creates racial enclaves within Canada, disenfranchises non-Nisga'a, allows an exclusive Nisga'a commercial fishery, allows Nisga'a government to impose taxation without representation, fails to protect aboriginal rights of neighbouring first nations, is overly generous to the Nisga'a Nation, is entrenched in constitutional concrete, alters the Constitution of Canada, and is a blueprint or template for other treaties in British Columbia and across Canada.

• 0930

The Nisga'a treaty—the real Nisga'a treaty—does not do any of these things. But the constant invoking of the make-believe treaty has resulted in a situation in which some members of the public, while genuinely wanting government to do the right thing, are concerned about the Nisga'a treaty, not because of what is in it, but because of the inaccurate statements about its content. The above list is not an exhaustive list of inaccurate statements concerning our treaty, but it includes the allegations most frequently made.

The best way to learn what the Nisga'a treaty does of course is to read it. In addition, numerous summaries are available from the three parties, as well as academic articles.

As this committee carries on with its deliberations, it will be necessary for you to always consider whether witnesses and members are describing the actual Nisga'a treaty or the make-believe treaty. A reasonable test is to ask the person to specify the paragraph or paragraphs they're referring to when they make assertions about the Nisga'a treaty contents. We also believe you will find, as we have, that the more informed individuals are about the real contents of the Nisga'a treaty, the more likely they are to support it.

The purpose of this submission is not to present a detailed description of the contents of the Nisga'a treaty. The federal government witnesses have already done this, and the committee has the treaty before it. We do think it is appropriate to refer briefly to the matters listed above in order to show the differences between the Nisga'a treaty and the make-believe treaty.

The Nisga'a treaty does not undermine the Canadian Charter of Rights and Freedoms. Ever since 1982, the Nisga'a have agreed that our government should be subject to the charter. Accordingly, the Nisga'a treaty clearly states that the Canadian Charter of Rights and Freedoms applies to Nisga'a government in respect to all matters within its authority, bearing in mind the free and democratic nature of the Nisga'a government, as set out in the treaty. That can be found in the “General Provisions” chapter, paragraph 9, page 18.

We are proud of our free and democratic government, and we have included Charter of Rights protection for all Nisga'a citizens in our own Nisga'a constitution as well. Section 25 of the charter does not, as some have suggested, weaken this guarantee. Our treaty right is the right to self-government and the authority to make laws, as set out in the agreement. You can see this in the “Nisga'a Government” chapter, paragraph 1, page 159.

The agreement states that the charter applies. Will there be difficult questions about the detailed application of the charter to our laws in the future? Perhaps, but they will be no more difficult than the questions Canadian courts and governments face every day in the application of the charter to laws enacted by the federal and provincial governments.

The Nisga'a treaty does not violate the equality rights of aboriginal women. One of the most disturbing allegations made against the treaty is that we have somehow acquired the ability to discriminate against Nisga'a women. This is an absurd suggestion. In addition to the guarantees of sexual equality found in sections 15 and 28 of the charter, subsection 35(4) of the Constitution Act, 1982 states:

Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.

• 0935

This provision would override any other provision of the Constitution Act, 1982 and will govern the interpretation of the Nisga'a treaty and Nisga'a laws. As mentioned above, subsection 35(4) was added to the Constitution Act, 1982 at the same time as subsection 35(3).

Nonetheless, opponents of the treaty have suggested that the treaty or Nisga'a laws could affect the division of marital property in a way that discriminates against Nisga'a women. This is simply not the case.

Federal and provincial laws apply to the Nisga'a Nation, Nisga'a villages, Nisga'a citizens, and Nisga'a lands, subject to any conflict or inconsistency with the final agreement or the settlement legislation. That's found in the “General Provisions” chapter, paragraph 13. The final agreement is silent about matrimonial property law, divorce, division of property, etc. Therefore federal and provincial laws apply. Division of matrimonial property will be determined under provincial laws of general application, to which the charter obviously applies.

The precise nature of the property interest to be held by Nisga'a individuals in their residential property has not yet been determined. Certain restrictions on the disposition of interests in some or all parcels of Nisga'a lands to non-Nisga'a persons are likely to be established. Such restrictions could not, however, discriminate between men and women.

I'd now like to pass on to my colleague, Mr. Edmond Wright.

The Chair: Mr. Wright, you have the floor.

Mr. Edmond Wright (Secretary-Treasurer, Nisga'a Tribal Council): Thank you, Madam Chair.

Good morning, committee members. I'm pleased to be here to help present the Nisga'a paper.

I'll give a little personal background. I'm also married; my wife is Millicent. We have three children and three grandchildren. I live in the community of New Aiyansh. I have been the senior administrator for the village since 1970. About three years ago, I took a full-time leave of absence to concentrate on the developments on the treaty table. I have worked in the logging industry and the fishing industry previously, and I've worked in the pulp mill. I have been on the executive continuously since the early 1970s, so I have a good knowledge of what our people in each of our communities have wanted us to negotiate.

I'm very pleased to be here to participate.

The Nisga'a treaty does not perpetuate the Indian Act. No one needs to tell the Nisga'a about the damage the continued application of the Indian Act over the last 130 years has caused to first nations. That is exactly why we insisted it no longer apply to us. That can be found in “General Provisions”, paragraph 18, page 9. Canada will still use the act to determine whether an individual is an Indian, but that determination does not determine whether the person is entitled under the treaty.

Further, the treaty provides that our lands are not lands reserved for Indians within the meaning of the Constitution Act, 1867, nor are they reserves as defined in the Indian Act. That can be found in “General Provisions”, paragraph 10, page 18.

Reserves are owned by Her Majesty in right of Canada for the use and benefit of Indian bands. On the effective date, the Nisga'a Nation will own our lands in fee simple. We can dispose of any estate or interest in any parcel of our land without the consent of the minister. That can be found in the “Lands” chapter, paragraphs 3 and 4, pages 31 and 32. The economic impediments resulting from the reserve system will be gone forever.

• 0940

The Nisga'a treaty does not deny Nisga'a citizens individual private property. On the effective date, Nisga'a individuals will receive the right to possess their residential lots. This right of possession will provide substantially the same rights as holders of certificates of possession have under the Indian Act. That's in the “Lands” chapter, paragraphs 33 to 35, page 37. For most of these individuals, who do not today have certificates of possession, this represents an enhancement of their rights.

The treaty contemplates that these initial rights of possession may be replaced with estates or other interests that increase the rights held by these individuals. The nature of the greater interests will be determined by the Nisga'a Nation after the treaty is in place. It is not a matter for the federal and provincial governments to decide for us.

We are currently developing an approach under which we expect to move towards replacing the initial rights of possession with individual estates in fee simple, a short time after the effective date of the treaty. No doubt most of Nisga'a lands outside of the villages will continue to be owned by our nation for the benefit of all of our people and for the welfare of future generations, but this is no more socialistic than is the owning of crown land by federal and provincial governments.

The Nisga'a treaty does not create a racial enclave within Canada. Many opponents have said Nisga'a lands will be an enclave within Canada. The Oxford dictionary defines an enclave as a foreign territory surrounded by one's own territory. But Nisga'a lands can in no way be described as foreign territory. The treaty makes it absolutely clear that all federal and provincial laws apply on Nisga'a lands, in accordance with the terms of the treaty. That can be found in the “General Provisions” chapter, paragraph 13, page 8.

We have always said one of the fundamental goals is to negotiate our way into Canada. It is mischievous to say the result of our efforts has been to create a foreign territory within our country.

The Nisga'a treaty does not disenfranchise non-Nisga'a. Opponents of the Nisga'a treaty invariably ignore the fact that the treaty sets out the Nisga'a Nation's right to self-government. The laws that can be made by Nisga'a government, with a very few well-defined exceptions, are laws that deal with Nisga'a citizens, Nisga'a treaty rights, and Nisga'a property.

It must be remembered that Nisga'a government will not have any jurisdiction over land currently owned by non-Nisga'a within the Nass Valley. All of the existing fee simple properties are expressly excluded from Nisga'a lands. That can be found in the “Lands” chapter, paragraph 1, page 31. The residents of these private parcels will continue to have the right to vote for federal, provincial, and regional governments, as they have always had.

• 0945

Almost all Nisga'a government jurisdiction is restricted to Nisga'a citizens and Nisga'a lands. What possible justification is there for requiring Nisga'a to give non-Nisga'a people the right to vote for or run for office in a government that will have virtually no jurisdiction over them and that will primarily be dealing with the rights and assets of Nisga'a people?

It is important to remember that neither Nisga'a citizenship nor the ability to participate in Nisga'a government is restricted to participants—that is, people who meet the eligibility criteria set out in the treaty. That can be found in the “Eligibility and Enrolment” chapter, paragraph 1, page 241. That is, while only participants have the right to demand Nisga'a citizenship, Nisga'a government has the authority to establish citizenship criteria that could include others. That can be found in the “Nisga'a Government” chapter, subparagraph 9(p) and paragraph 39 on pages 161 and 167 respectively.

We have insisted on such a power because of the recognition that there are and will be residents who are, in every meaningful way, full members of our communities and who should be included in the democratic functioning of Nisga'a government. However, the criteria for including others in our nation must be left to our people to establish and not be determined for us by Canada or British Columbia.

Today non-Nisga'a residents in the Nass Valley enjoy a level of representation on the Nisga'a Valley Health Board and on the board of school district 92 Nisga'a that is far in excess of their numbers. This participation will continue after the effective date, and if those bodies are replaced by institutions created by Nisga'a government, an appropriate means of ensuring their continued participation will be established.

If the activities in the Nisga'a government or its institutions significantly and directly affect those residents, we have agreed to devise means to include them in our decision-making process, which may range from consultation to the right to vote to a guarantee of representation on a Nisga'a government institution, depending on the nature of the activity and the effect on the residents concerned. That can be found in the “Nisga'a Government” chapter, paragraphs 19 through 22, pages 163 and 164.

The point is that the issue of non-Nisga'a participation in activities of a government that will only rarely affect non-Nisga'a people is not a simple one that can be solved by slogans about democracy or by forcing Nisga'a people to have our internal decisions about our own rights determined by the wishes of non-Nisga'a, as they have been for so long. The treaty provides the tools, the principles, and the flexibility for Nisga'a to continue to live in harmony with our non-Nisga'a neighbours.

The Nisga'a treaty does not include the power of Nisga'a government to impose taxation without representation. We unequivocally agreed that our power to impose taxation under the treaty is limited to Nisga'a citizens on Nisga'a land. That can be found in the “Taxation” chapter, paragraph 1, page 217.

• 0950

It has been suggested that paragraph 3 of the “Taxation” chapter provides for taxation without representation. In fact it does the opposite. It provides that any Nisga'a government taxation authority over persons other than Nisga'a citizens on Nisga'a lands would only be provided if a future agreement outside of the treaty is negotiated and agreed to between the Nisga'a nation and Canada, British Columbia, or both. No doubt the appropriate means of representation in light of whatever authority might be provided would be a subject matter for those negotiations.

Thank you.

I will turn this over to my colleague, Mr. Harry Nyce.

The Chair: Mr. Nyce, you have the floor.

Mr. Harry Nyce (Senior Resources Negotiator, Nisga'a Tribal Council): Thank you.

Good morning. My name is Gilse'en. I am under the chieftain leadership of Hleek. I'm also a member of the Kitimat-Stikine Regional District local government. I'm pleased to say that I've been acclaimed again as a director for the next term. This will be my fifth term on the local government. I've also served my community as chief councillor for seven terms. I also served as the band administrator in the early part of the 1970s, and have served on the Nisga'a Tribal Council since that time as well.

Since 1962 I've also been a commercial fisherman, and I still am today. I am married to Deanna, who is from the Tsimshian Nation. We have three children. Deanna holds a master's degree in education administration. She is the chief executive officer for the Wilp Wilxo'oskwhl Nisga'a, which is a Nisga'a university/college two-room campus in New Aiyansh.

Our son, Harry, is now the band administrator. When I held that position I had a grade 12 education; Harry has a university degree in resource geography and is now the administrator of our community. Our daughter, Angeline, is in fourth-year university in forestry. She will be graduating this year. Our youngest daughter, Allison, has a university degree from UBC in anthropology. She has a permanent display at the museum across the river in Hull.

We're very proud of our children, and we know that this treaty holds a better future for them than where we came from. I was at residential school in the early part of my years in Edmonton, Alberta, and in Port Alberni, British Columbia.

Madam Chair, the Nisga'a treaty does not create an exclusive Nisga'a commercial fishery. The Nisga'a treaty sets out clear entitlements and allocations for fish and wildlife. The approach is one of sharing.

For example, the treaty provides a formula under which our share of each species of the Nass salmon returned to Canada will be determined. That share will vary depending on the abundance of the resource; in low-run years we may even harvest less than our current harvest for domestic purposes. This can be found in the “Fisheries” chapter, schedule A, pages 123 to 124.

We will have the right to sell Nass salmon in accordance with the various federal and provincial laws referred to in the treaty, as in the “Fisheries” chapter, paragraphs 31 to 32, page 107.

However, there could never be a situation in which the Nisga'a commercially harvest a species of Nass salmon at the same time as commercial and recreational fishermen are prevented from harvesting that species, as in the “Fisheries” chapter, paragraph 33, page 107.

The Nisga'a treaty does not fail to protect aboriginal rights of neighbouring first nations. None of the provisions of the agreement interfere with the rights of any other first nation. To place the matter beyond doubt, we agreed to include provisions to that effect in the treaty, as in “General provisions”, paragraphs 33 to 35, page 22. Although some have argued that these provisions are ineffective, in our view the treaty could not be clearer.

• 0955

The Nisga'a treaty is not overly generous to the Nisga'a Nation. There has been little discussion on what we have contributed to this agreement. Remember that the Nisga'a lands we will own under the treaty are but a small part of our traditional territory. We commissioned a Price Waterhouse study of the present value of the resources that have been removed from our traditional territory—resources taken without compensation to the Nisga'a. The amount was in excess of $2 billion.

A number of our people voted against the treaty because they believed it should have included much more land, resources, compensation, and jurisdiction. Many were reluctant to give up the current tax exemption provided under the Indian Act.

However, the majority of us, over 70% of those voting, voted to accept the package, not because it gave us everything we wanted, or that we believe we should have everything, but because the majority of us decided that it is an acceptable compromise. Nonetheless, we continue to believe that the governments simply do not have enough money to truly compensate the Nisga'a Nation for what they have already taken from us.

The Nisga'a treaty is not entrenched in constitutional concrete. The Nisga'a treaty is protected under section 35 of the Constitution Act, 1982. More precisely, the rights set out in the treaty will be “recognized and affirmed”. This does not mean that the treaty cannot be amended. An amendment procedure is included in the treaty, in the “General Provisions” chapter, paragraphs 36 to 43. The procedure requires the consent of the parties.

Some people seem to suggest that Canada or British Columbia should be able to alter the treaty unilaterally, without the consent of the Nisga'a Nation. This defeats the entire purpose of the agreement.

But it also must be recognized that the Supreme Court of Canada has indicated that section 35 is not absolute. It has ruled that aboriginal and treaty rights can be infringed if the infringement is justified and consistent with the honour of the crown. Is this not sufficient? The opponents of the treaty wish governments to be able to infringe on our rights in a way that violates the honour of the crown.

The treaty does not alter the Constitution of Canada. This is clearly set out in the “General Provisions” chapter, paragraph 8, page 17. Under the treaty, the Nisga'a government will not have any exclusive jurisdiction. Put another way, federal and provincial laws will continue to apply to the Nisga'a Nation, Nisga'a villages, Nisga'a lands, and Nisga'a citizens. However, Nisga'a laws will also apply.

The application of more than one government's laws to the same subject matter is known as concurrent jurisdiction. This is very common in Canada, as federal, provincial, and municipal laws often overlap despite the establishment of exclusive jurisdiction. Problems only arise if it is uncertain which law prevails if the laws are inconsistent.

Because there are no areas of exclusive Nisga'a jurisdiction, there will often be areas in which Nisga'a laws and federal or provincial laws deal with the same subject matter. A key part of the negotiations was determining which government's laws will prevail in respect of each and every area over which the Nisga'a government has authority.

Opponents of the treaty say that if there is inconsistency in laws, federal or provincial law should always prevail over Nisga'a laws, even if the laws deal solely with Nisga'a people, Nisga'a culture, Nisga'a lands, and other purely internal matters. Why is this dominance so important to these people? Why do they insist that first nations should always be subordinate to federal and provincial governments?

• 1000

Of course the argument is never framed in terms of dominance or subordination. Rather, their opponents wrap themselves in the assertion that all law-making power is exclusively divided between federal and provincial governments, and there is just no place in Canada for authority that is not delegated and controlled by these two levels of government.

That is what they mean when they say first nations' governments must be municipal governments. They assert that the federal and provincial governments must be able to take back first nations' authority, and the first nations' laws must always give way to federal and provincial laws. They say, in effect, that the provincial and federal governments should only enter into agreements on self-government if they can break those agreements at will.

But this denies the reality of first nations as self-governing peoples in Canada. It asserts that the authority of aboriginal peoples over our own lives and culture was implicitly extinguished by Canada's Fathers of Confederation. It denies that there is anything left to reconcile with the sovereignty of the crown. It denies the honour of the crown in its treating with aboriginal peoples. It therefore denies the inherent right of self-government.

The Nisga'a Nation recognizes the sovereignty of the crown. Through the treaty, Canada, British Columbia and the Nisga'a have achieved reconciliation between this sovereignty and the ancient rights of Nisga'a people.

I will now hand this back to the president, Dr. Joe Gosnell.

The Chair: Dr. Gosnell, do you have anything further at this point?

Dr. Joseph Gosnell: Moving into the final phases of our presentation, the Nisga'a treaty is not a blueprint or template for other treaties in British Columbia or across Canada.

We know that at one point former British Columbia Premier Glen Clark, whose support of the Nisga'a treaty has been as steadfast as that of the Prime Minister, referred to the Nisga'a treaty as a template. We believe he was referring not to the detailed contents of the agreement, but rather to the model that it establishes for resolving differences through negotiations and compromise, rather than litigation.

Opponents of the treaty have seized on this term and the similar term, “blueprint”. They now insist on claiming that the Nisga'a treaty will be applied mechanically in all other negotiations currently underway in British Columbia, or elsewhere in Canada. This suggestion would be too absurd to be taken seriously if it were not being repeated so frequently.

First, the Nisga'a Tribal Council has publicly and repeatedly stated that we have neither the desire nor the mandate to negotiate on behalf of anyone other than the Nisga'a Nation.

The template argument is based on the demeaning assumption that other first nations will simply agree to the Nisga'a approach regardless of their own circumstances, desires or priorities. Moreover, even if the federal and provincial governments were to expressly instruct their negotiators to go forth and replicate the Nisga'a Final Agreement elsewhere in the province, this would be an impossible task.

The unique circumstances of the Nisga'a make certain arrangements possible with respect to land or fisheries that would not be possible in urban or inland areas. There are between 5,000 and 6,000 Nisga'a people. Some other first nations have fewer than 1,000 people and some have fewer than 100 people. Obviously, arrangements will be very different, depending on the size of the population, the nature of the traditional territory and its resources, and the proximity of urban areas and other third-party alienations.

Finally, in recognition of these obvious facts, the federal government has stated that the Nisga'a Final Agreement is not a template. If the parties at other negotiating tables choose to adopt certain aspects of the Nisga'a Final Agreement, it will be because they consider that it makes sense to do so, not because the Nisga'a approach has predetermined the outcome of those talks.

• 1005

In conclusion, perhaps the most remarkable aspect of the current debate is the extent to which those individuals and organizations who oppose the Nisga'a treaty fail to recognize that the package was negotiated and agreed to as a whole, that each party compromised on some objectives and succeeded on others.

No one should think that at this point it is possible to go through the agreement accepting the compromises we made at the table, while rejecting the achievements at that same table. Whoever thinks that the Nisga'a or any first nation will return to the negotiating table to accept whatever crumbs the federal Reform Party or the British Columbia Liberal Party may be willing to offer, must face the reality that this will not happen.

The suggestion that equality requires that the objective of negotiations should be the elimination of all the legal rights that are uniquely held by aboriginal people under the Constitution is contrary to Canada's history and evolution, and is, with due respect, perverse. No other Canadians are asked to negotiate agreements under which they will give up their constitutional rights. Why should aboriginal people be required to give up theirs?

We have bargained with the federal and provincial governments peacefully and in good faith, relying on the honour of the crown to carry our agreement to fruition. Canadians should realize that the Nisga'a Final Agreement is a balanced and sensible reconciliation of issues that have frustrated and divided British Columbians for more than a century. It should be celebrated as proof that people of good faith can resolve their differences without confrontation or litigation.

The Nisga'a Nation has waited long enough. We ask for this committee's support in ensuring that the Nisga'a treaty is ratified before the end of this year and the end of this century. Then we can go forward together, better equipped to face the challenges to come in the next century.

Madam Chair, I recognize that our presentation has been lengthy, but I remind the committee and other Canadians that we have waited 112 years to get here. We're prepared for questions.

The Chair: Thank you, Dr. Gosnell.

The first questions are for the Reform Party, Mr. Scott.

Mr. Mike Scott (Skeena, Ref.): Thank you, Madam Chair. Thank you, Chief Gosnell.

I'd like to start by going to the self-government provisions. As you know, that's where the concern of the Reform Party lies. There was quite a bit of discussion from many of the presenters on the fact that in your view the self-government provisions did not constitute a violation of the Canadian Constitution. As you are also aware, there are legal and constitutional experts, predominantly in British Columbia, who are of the view that it may or it does.

The Reform Party, in the spring of this year, suggested a reference of this question to the Supreme Court of Canada for a definition or a ruling from the court on that issue, prior to ratification. Would you have an objection to that question being addressed by the Supreme Court in advance of ratification of this treaty?

The Chair: I give the floor to James Aldridge.

Mr. James Aldridge (Legal Counsel, Nisga'a Tribal Council): Thank you, Madam Chair.

The Nisga'a Tribal Council has clearly rejected the notion that the treaty needs to be referred to the Supreme Court of Canada for determination of its constitutionality. It is the clear view of the Nisga'a Tribal Council, as well as the Government of Canada, the Government of British Columbia and many other constitutional experts, that the Nisga'a treaty does not amount to a constitutional amendment in any way.

• 1010

As members of the committee will recall, yesterday the member from Skeena correctly pointed out that there is currently litigation pending in the courts of British Columbia. He referred to at least two actions. In fact I believe there are three.

Because that litigation is pending, it's obviously difficult to get into the detailed legal arguments in this forum, many of which will be appropriately raised in those forums when those matters proceed. But in terms of the prospect of a reference to the Supreme Court of Canada, the Nisga'a Tribal Council has taken the position that this is unnecessary and that ratification should proceed in accordance with the agreement.

The Chair: Mr. Scott, do you have a question?

Mr. Mike Scott: Yes.

I guess the concern would be, Mr. Aldridge, what happens “if”? Even though it's your strong position—and I understand why the Nisga'a Tribal Council or Nisga'a government would have that position—you must at least concede that given the legal actions pending, the subject is controversial. In other words, you don't know what the courts may say until you actually get a ruling.

Wouldn't this effectively completely neutralize the self-government provisions in the Nisga'a treaty in the future if in fact the Supreme Court of Canada concluded that the arguments raised in British Columbia by both the B.C. Liberal opposition party and the B.C. Fisheries Survival Coalition actually prevailed?

Mr. James Aldridge: It is true that one can never predict with absolute certainty what the courts will do in any particular case. However, it is the view of the Nisga'a Tribal Council and, as we understand it, the governments of Canada and British Columbia that there is no reasonable prospect of that happening.

So one cannot be paralysed proceeding into the future because certain people, even eminent experts in their respective fields, suggest there may be a constitutional question. The point of view of the Nisga'a Tribal Council is that you carry on, confident in your position. In this case, the Nisga'a are very confident in their position, which is shared by the other two governments. We don't think there is a realistic risk of that hypothetical situation arising.

The Chair: Mr. Scott, you have more time.

Mr. Mike Scott: I'd just like to stay on that for one more minute. As I say, I appreciate the position you're taking, that you don't think there's a reasonable proposition, but some pre-eminent constitutional legal experts do believe there is a strong argument to be advanced.

My question is, in the event that the court, particularly the Supreme Court—no doubt that's the level at which this will eventually be concluded—finds in the future that those arguments coming out of British Columbia prevail, what will happen to the treaty? What kind of certainty and finality do we have?

Mr. James Aldridge: It's difficult to say more than I already have. Indeed, there are some people who have advanced the views that the member is referring to. There are many others who have advanced the opposite view. Ultimately, one takes confidence in the position and the analysis that has been provided by the parties to the table, and one proceeds.

It's difficult to answer the hypothetical question of what would happen to the treaty in the event of some hypothetical ruling that (a) we don't believe will be the case, and (b) one doesn't know the details or texture of. Accordingly, it would be very imprudent for me to speculate on what the possible outcome of such a possible ruling might mean. It's really impossible to say.

The Chair: Thank you.

[Translation]

Mr. Bachand, you have the floor.

Mr. Claude Bachand (Saint-Jean, BQ): Madam Chair, I would like to begin by stating my appreciation for what Mr. Leeson calls the real treaty. I think that there are several ways of understanding a treaty. You can open it up and read the 150 or 200 pages, as I did. That is the intellectual approach. Here, on Parliament Hill, we are very used to doing this.

But when I look at such an important treaty, I also take an interest in the philosophy, tradition and history behind it. One approach, Madam Chair, is to go and meet people there to see what their philosophy is, to see the history and traditions of their nation.

• 1015

I had the honour of going twice to visit Nisga'a lands. What I discovered there gave me a thorough explanation of the philosophy of the treaty. What I found was an absolutely splendid landscape. I discovered absolutely fascinating people, whose culture is much older than ours, and of which they are extremely proud. I envy the lifestyle of the people I saw there, in perfect harmony with nature. Above all, they were very happy, not only intellectually but in their hearts, because they were convinced that they were on the right path. I believe that they are.

The people I saw wanted to live in peace, in harmony with their neighbours, and as I said earlier, they took a great deal of pride in their culture. I met very friendly people. The first time I went there, they took me everywhere. They helped me discover their food, their homes, their philosophy, and their friends, and I even became friends with their friends.

I can therefore understand why they now want to have done with it. History tells us that their ancestors were just as friendly as they are today, but that unfortunately, we, the white people, took advantage of them. I think that we now need to take this opportunity to set things right. That is why we support the treaty before us today.

I did not see in it a make-believe treaty, and I want to say so. I did not see any racism in it, or discrimination. I did not see any dissent. I saw nothing of that. All I saw was harmony. I met a lot of people, not only Nisga'a, who take a great deal of pride in this treaty and who definitely would like to see it signed.

Now, I am afraid of something, and I told the Minister of this yesterday. This is the reason for my question. I told the Minister yesterday that I found he had danced the tango for too long with the Reform Party by allowing us to spend a week in British Columbia hearing the testimony of 64 people, and that we should probably conclude the listening process here in a conference call. I have fears, because I know that the British Columbia Legislative Assembly went through this exercise and that it was very difficult. The wounds are still healing, and there are people who will probably seize the opportunity to reopen the wounds in an attempt to kill the treaty.

I would like to ask the Nisga'a whether they, like me, fear that these wounds will be reopened. It is never a good idea to do this. It seems to me that the work had already been done with the Legislative Assembly. If we start all over again, it will be duplication.

I would like to know whether you share my fears.

[English]

The Chair: If I may, I would just clarify that the committee has decided that the 64 witnesses are in two weeks—one week in B.C. and one week here.

Please continue, Dr. Gosnell.

Dr. Joseph Gosnell: Thank you, Madam Chair.

We recognize the enormous amount of work that took place in the province of British Columbia with respect to the provincial Select Standing Committee on Aboriginal Affairs. They entered into literally hundreds of meetings and heard oral and written presentations during the course of their journey throughout the province.

In our view, Madam Chair, this committee certainly can review what has already been said. Will we hear the same arguments when you proceed again through British Columbia? The oral submissions numbered 503, and the written submissions 231. That's an enormous amount of participation by those citizens of British Columbia who made their voices heard in front of the provincial standing committee.

The Chair: Thank you.

[Translation]

Mr. Bachand? No?

[English]

From the NDP side, Libby Davies, please commence.

Ms. Libby Davies (Vancouver East, NDP): Thank you, Madam Chair.

I am very honoured to be here today to hear the witnesses from the Nisga'a Tribal Council as we begin our very historic process here in Parliament to look at the treaty and its ratification.

• 1020

Being from British Columbia, I can tell you that along with tens of thousands of other of British Columbians, I've watched this process over the last few years and the debate that has taken place. Listening earlier to the member from the Reform Party saying this is a controversial piece of legislation and there are different opinions, I was thinking I couldn't imagine any piece of legislation that has ever come forward, whether it's in B.C. or in Ottawa in Parliament, that hasn't been controversial.

Legislation is always controversial. There are always varying opinions. But I think what's important and what I've learned from watching the public debate is that this is probably the most scrutinized piece of legislation ever in British Columbia. This has been under the microscope. It has been deconstructed. It has been pulled apart. It has been examined. It's the most scrutinized process and piece of legislation that I think we've ever gone through.

What's important for the committee, as we proceed now to hearings out in the community, here in Ottawa, is to weigh up what you've said today, on the one hand the mischief that's being made, the allegations that have been made, and to consider that, but to weigh it against the full weight of the process that has unfolded. At some point the sheer weight of that process, what has gone on in the last 20 years, the more than 40 hearings that have been held, the legislative committees, the debate in the B.C. Legislature, the debate in the mainstream media, itself has brought about the most incredible disclosure, the most incredible examination that has now brought us to this point. I can't think of any issue that hasn't been examined in this treaty and dissected by lawyers, by aboriginal people, by the community at large, by fishers, by commercial people, and by business people.

So on the process itself—and you spoke about the process as maybe being a model of how we should do business, how governments should do business, and work in full partnership with aboriginal people—I believe that's very important, because it has required, by necessity, the kinds of disclosure and examination that no one could criticize. I don't know how anyone could criticize that.

I know one of the components in that process was a recognition that there are other third-party interests involved, other stakeholders. This was a negotiation in good faith between the federal and provincial governments and the Nisga'a people, but there are also other interests.

Could you comment on the other stakeholders that have been involved and explain how those interests were also reflected in the process, in terms of commercial interests, or the Union of British Columbia Municipalities, municipal interests, so that we can again understand what kind of process we've had and what kinds of involvement and examination there have been.

The Chair: Mr. Wright.

Mr. Edmond Wright: Thank you for the question.

One of the things we will be doing immediately on the effective date—and certainly today we have developed the work and worked very closely with the Province of British Columbia—is rolling over a whole lot of what you would call permits, rights of way, licences of occupation, and so on, of present users in the Nass Valley. That would be B.C. Hydro, B.C. Tel, the forest companies, waterworks, and so on. We've developed new permits and licences of occupation. We will have that in a land registry so that we can keep track of it. They're on the basis of very similar terms as previously given by the Province of British Columbia. The province wanted us to roll over very similar types of permits, licences of occupation, and so on.

• 1025

We have also given road permits and easements, and so on, to the private property holders who are within Nisga'a lands. We've also given them the rights that we sometimes hear talked about: domestic water, watershed rights. We've given them those particular rights to access their water.

During that whole process, of course, the Kitimat-Stikine Regional District had a representative sitting as a member of the provincial negotiating team. His name is George Thom. George Thom is a former mayor of Kitimat who now lives in Telkwa, near Smithers, British Columbia. He was fully involved in that.

So there was a lot of involvement, and we heard from the government side yesterday about the types of advisory groups they had, the Nass Valley advisory group, the advisory groups on fisheries and on forestry, also the companies that hold interests and licences, and so on, whether they be TFLs or forest licences or small business or woodlot licences. They were involved, and we are rolling over those particular things that are in place.

They will be dealing with us. We will have a very formal land registry with which they will have to communicate on any of the licences, permits, rights of way, and so on, that will be expiring in the near future. Certainly, I don't think we're going to be changing any of the terms. I think we need these types of services, and we need the people who will continue logging on the outskirts of Nisga'a lands. Our people work for them. That will continue.

So there was a lot of communication and we have guaranteed those, as you can see in the appendix volume of the agreement. Samples of the permits and rights of way are there.

Thank you very much.

The Chair: The time is up. It is normally the NDP round. Mr. Keddy, who was here for your presentation, wants to express his thanks for that presentation and has asked me to convey his regrets. As I'm sure you understand, we all sit on many committees, not just one, so there will be movement in and out.

Having said that, we will now go to Mr. Finlay from the government side.

Mr. John Finlay (Oxford, Lib.): Thank you, Madam Chair.

Gentlemen, it's a great pleasure for me to be here and hear your presentation. I consider it an honour to be here beside my colleague Nancy Karetak-Lindell, from the new territory of Nunavut, which was incorporated earlier this year, on April 1, 1999. I look across at Louise Hardy from the Yukon. I appreciate my colleague Claude Bachand and his words of wisdom with respect to the journey you have travelled and the amount of work that has been done. I'm delighted that in my work with this committee and, before that, with the environment committee, I have had the opportunity to travel from east to west in the north, northern Quebec, Kuujjuaq, Iqaluit, Resolute, Rankin Inlet, Cambridge Bay, Whitehorse, Yellowknife, and so on.

It is a historic document, and the ratification of it will be a historic moment. Chief, I share your hope that we ratify this before the end of the century and the millennium and we can go forward together better equipped to face the challenges to come in the next century.

I think one of my colleagues across the table mentioned the report of the Royal Commission on Aboriginal Peoples; I'm not sure. Some of us paid a lot of attention to that. It cost a lot of money, it took a lot of work, and it involved a lot of travelling, and I think it says, as well as it can be said, that what the aboriginal people of this country want is recognition, respect, partnership and responsibility. I suggest that this treaty does exactly that.

• 1030

I listened with interest to the argument about the template. But if we feel this treaty is so historic, then whether it is an actual template or not, it is going to... I understand, Chief, that you mean you fill in the name “Ojibway Cree” instead of “Nisga'a” and it will work. Well, it won't, of course, as you rightly point out. But surely the procedure and the discussions and so on that go on will have some effect.

I agree with my colleague Claude. Other legislators have looked at this, other men and women of goodwill, and they have come to this point, and here we are redoing that work.

The only thing I would suggest to Mr. Bachand and to all of us is that a good result may come of our seeing another 64 witnesses and reading another 35 written presentations and so on. It may be that we can help Canadians better understand the point of view of aboriginal people and the absolute necessity of settling these matters in such a way that aboriginal people can become full Canadians within the mosaic of Canada for the next millennium. That's what we're about.

So my question, fairly simply, is, how do you feel this agreement will affect the treaty negotiation process in British Columbia—and if you'd like to go a little further, across this country—Dr. Gosnell?

Dr. Joseph Gosnell: Thank you. I'm very pleased to respond to that.

It's important for not only this committee but Canadians as well to recognize the nature of aboriginal societies and the diversity in their language, in their culture, and in the geographic locations where they're specifically located.

We know for certain that the treaty we have negotiated will not work in the southern part of the province and certainly will not work in the interior of British Columbia, let alone the coast, because of the different priorities aboriginal people place on what is most important to them.

We also recognize that there may be certain aspects in the treaty that can be utilized by other aboriginal groups, but not necessarily all of them. With respect to that happening across the country, again, people must recognize the diverse nature of our geographical locations across the country. That certainly must be looked at.

I certainly don't anticipate that the Nisga'a treaty will be used such that it can be forced upon people. No, that would be the worst thing governments could do, whether provincial or otherwise. It's important for aboriginal people to be heard.

What is it that aboriginal people are seeking across this great country? To me it means meaningful participation in the social, political, and economic life of this country, to get us out of the situation we're in. It's taken us 130 years to be placed where we're at today. It's certainly, in my view, going to take us a considerable amount of time to work ourselves out of it. But what do we have today? We have the tools to do that job.

The Chair: Thank you.

Mr. Scott.

Mr. Mike Scott: Chief Gosnell, I'd like to go back to the provincial standing committee you referred to, which travelled extensively around the province, and I know other people have said that here this morning. That is very true: the provincial standing committee did travel around the province. It held I'm not sure how many meetings—dozens of meetings, anyway. But I think you would agree with me that that was after the agreement in principle was signed, and it was after you stated publicly, Chief Gosnell, that not one word of that agreement in principle would be changed.

So the net effect of that standing committee's work, travelling around British Columbia and meeting with rural communities, communities in the lower mainland, and urban communities, and all of the hundreds of submissions that committee received—and of course we have the transcripts of that committee's work—was that not one word of the agreement in principle was changed. In other words, all of those public consultations amounted to nothing in terms of the public's views on the treaty process and what should and shouldn't be included in the treaty. Would you not agree with that?

• 1035

Dr. Joseph Gosnell: No, I would not agree with it, Mr. Scott.

One of the remarkable aspects that we agreed to with the province had to do with the Nisga'a Highway and who owns the land on which this roadway is built. We had originally opposed the province holding title to the roadbed of the Nisga'a Highway. However, during the dying days of the negotiations, we agreed that British Columbia should hold title to the land upon which the Nisga'a Highway is currently constructed. We have no problem with that.

Mr. Scott is quite right: numerous meetings were held throughout the province, and people's concerns were heard. But I have to remind Mr. Scott that this is an aboriginal treaty, and the rights of our people are dealt with very specifically in this treaty. Our rights will no longer be ambiguous in nature; it is clearly spelled out. We know where we're going to stand in the foreseeable future, as will those non-aboriginals who reside in close proximity to us.

The agreement in principle is 184 pages in length. The Nisga'a Final Agreement, including the appendices to that treaty, is 722 pages in length. Do we expect British Columbians to go through all of these pages to see what its contents are? Recognizing the importance of the document, Madam Chairman and Mr. Scott, certainly we expect them to do that. Why not? They should be aware of the agreement we have entered into.

We fully expect the honour of not only the provincial crown but the federal crown to be upheld, recognizing that we sat across the table from these individuals for almost a quarter of a century. Is that long enough in the eyes of Canadians? Is that long enough in the eyes of the Nisga'a Nation? For us it's far too long—far too long.

The Chair: Mr. Aldridge, you wanted to add to that answer?

Mr. James Aldridge: I just have a point of clarification, Madam Chair.

The agreement in principle that was achieved—and it was the subject of all of the debate and discussion including but not restricted to that before the standing committee—indeed was changed. The president and the tribal council did take the position, as I think committee members would understand they would and had to, that having reached an agreement in principle, they weren't going to go back to square one and start negotiating again, after 20 years at the table. But in fact many changes were made. Yesterday one of the federal government witnesses referred to several of them.

We don't have a catalogue of all of the changes that were made, but as the president has pointed out, just take the two documents and compare them. The agreement in principle is much thinner. There is a lot more text now. What was that all about? Well, in many cases a fairly bald statement in the agreement in principle would give rise to various concerns reflected through the consultation process, and government negotiators would come to the table seeking clarification. So what was one paragraph would become two, three, or four in order to address the concerns that were raised.

The other extremely important change the committee should bear in mind is that the agreement in principle did not state that Nisga'a lands would be owned in fee simple. That is, the agreement in principle spoke of a form of land ownership that did not use the terminology of fee simple ownership. One very important change the parties agreed to in the final agreement is in paragraph 3 of the “Lands” chapter, to say that indeed the nature of that ownership is an estate in fee simple, a very familiar form of ownership of course to our legal system.

So with the greatest of respect, changes were made. The fundamental elements of the agreement, certainly—the total amounts of land, dollars, fishing allocations, and so on—remained the same, but that's not to say the agreement did not reflect consultation and concerns that were brought forward.

• 1040

[Translation]

The Chair: Mr. Bonin, you have the floor.

Mr. Raymond Bonin (Nickel Belt, Lib.): Thank you Madam Chair.

[English]

Thank you very much.

Dr. Gosnell, and to your colleagues, first I want to congratulate you on this excellent presentation. As members of Parliament we receive much documentation, and I don't plan on keeping everything to share with my grandchildren, but this is one that I will keep.

You have been waiting 130 years. I must say that you must be doing something right, because you look darn good.

Doctor, I too have a family and have been married for a long time, 36 years, and I have two children and three grandchildren. We enjoy the privilege of living in the best country in the world, officially the best country in the world for the last six years. I can't speak for government, I'm not a member of cabinet, and I'm not mandated to speak for this committee, but I can speak for myself and for my family. And I want to thank you and other first nation communities for sharing this great country with us.

In 1913 you demonstrated your goodwill when you lodged the petition in which you said that you were not opposed to the white people coming to your community, that you would be prepared to take the moderate and reasonable position. It's on record, that's your position. That's the way you approach contracts with partners. Yet you were subject—and I say “victim”—to the Indian Act.

In the same year as your petition was brought, Mr. Scott became deputy superintendent general of Indian Affairs. Mr. Scott believed that the correct policy to be taken by the Government of Canada was the assimilation of your people. And he is quoted as saying:

I want to get rid of the Indian problem. Our objective is to continue until there is not a single Indian in Canada that has not been absorbed into the body politic and there is no Indian Question and no Indian Department.

These were the tools that you were given in order to reach equality. These were the tools that you were given to create wealth for the people you represent, for your communities.

I'm not mandated to speak for the government, and I'm not mandated to speak for this committee, but I can speak for myself and for my family, and I want to apologize to you for having subjected you to that type of situation, to those conditions. I'm really proud, though, today to be a member of this committee, because I believe we are giving you the tools to create wealth for yourselves and for your people.

I believe that a contract has to be fair for all signatories. This is a fair contract. The Indian Act is not a fair contract, and never has been.

If it were left to me, we would have voted on this last night. It must be frustrating for you to be going through this again after going through the process that you went through in the B.C. Legislature. They did a good job. They allowed the time. They went through the process, Madam Chair, and it's done. All the witnesses we will be hearing will repeat what they said in that process.

I reject that one of the parties around this table is using this committee and the debate in the House of Commons, and the expenditure that it will cost—this will cost over $200,000—in order to attempt to support a court case that is somewhere else in another institution. I resent that. In spite of that, I will go through the process, but I want to go on record as saying I would be prepared to vote now and send this magnificent document back to the House of Commons so that we can deal with it expeditiously.

• 1045

I do have a question. I would like to know what the process is that you used to ratify the agreement within your own community. And I think I know the answer to the other question: is the Nisga'a Nation ready and prepared now to assume governance?

The Chair: Dr. Gosnell, please.

Dr. Joseph Gosnell: Thank you, Madam Chair. I'll answer the second one and I'll leave the ratification issue to either one of my colleagues.

Are we prepared to take on the issue of governance with respect to what is currently contained in the Nisga'a treaty? I'm very pleased to say, Madam Chair, that we are. Immediately and prior to reaching the agreement in principle, in 1966 we began the preparation of ensuring that if and when the effective date of the treaty did come around, we would be prepared to take on the issue of governance. We have put certain things in place that would be required. Even as we are speaking, we're in the final phases of some of the legislative acts that will be required to enable our governing body to function properly. The finishing touches on those pieces of legislation hopefully will be completed by December.

Are we ready? Yes, we are.

The Chair: Mr. Wright.

Mr. Edmond Wright: I'd like to answer the question on the ratification.

In three days it will be exactly a year since we went to the polls to ratify the Nisga'a constitution and the Nisga'a treaty. We had two different tests for those two documents. The test for the Nisga'a Final Agreement required that we pass 50% plus one of all eligible voters. So if people did not show at the polls, those particular persons, without knowing it, voted no, and still we were able to pass the treaty by a vote of 61%. We had 23% that were actually no votes. We had 15% who didn't show up at the polls. We had 1% spoiled ballots.

For the constitution we had a different test, and that was on the basis of those who came to the poll who were eligible. We had 73% vote in favour of our constitution; 26% said no, and there were 1% spoiled ballots.

For your information, we had to set up a ratification committee that is very independent and at arm's length from the political groups in the Nass Valley. We had people nominated who were band councillors, who stepped away from their work as band councillors in case of a conflict so that they would be at arm's length from their band councils. They had to release themselves from their duties as councillors for a period of months.

So each one of our communities—we have four villages in the Nass and we have three urban locales where we have a concentration of our people. We had seven representatives on that ratification committee. That ratification committee posted four employees, a commissioner, and some clerical staff. And they had a budget to work with. It was very expensive. As you are aware, anything that has to do with elections or polling is very costly. The cost of our ratification process was a little over $800,000.

We believe that the independence of the process, through their reports, will stand up. They've been accused of not being independent. We believe we could stand by that independent committee to answer any questions when someone accuses them of not being independent.

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So that was our process. Thank you very much.

[Translation]

The Chair: Mr. Bachand, do you have any further questions?

Mr. Claude Bachand: Yes Madam Chair.

When I read the treaty, my attention was drawn to specific chapters. I also had the opportunity to say so publicly. There is the chapter on citizenship, and also the chapter on taxation and more specifically the chapter on international arrangements. Yesterday, I asked Mr. Molloy, who was here to testify on behalf of the Department of Indian Affairs, about this.

I am referring again to a paragraph about which I would like to know more in terms of its scope. It says that Canada would have to consult you in formulating its positions concerning fisheries if it has an impact on you. I am trying to extrapolate. We can probably speak of an impact on salmon in terms of our relations with the Americans. Is that what we are to understand from this paragraph?

Secondly, are there other aspect of the agreement on which you could be consulted when Canadian positions are being formulated?

[English]

The Chair: Mr. Nyce, please.

Mr. Harry Nyce: Thank you for the question.

The international arrangements are particularly with respect with fisheries. Madam Chair, the Nass River is the third largest salmon-bearing river in British Columbia. We are the only tribe living on the Nass River currently. We harvest all the salmon species that run to the Nass River. The migration of Nass River fish come down through the Gulf of Alaska, and a tremendous amount of that fish is intercepted by the Alaskan fishermen. Therefore we indicated to Canada and British Columbia that it was important for us to be consulted with respect to any arrangements regarding the fish arrangements in the future.

We are running a Nisga'a fisheries program, as Mr. Bachand has seen and also Madam Chair. We stand by the data that is collected on this fisheries program. It was important for us that any numbers regarding the fish must be known to us, because we are running the administration of that fisheries program for the Nass River. And this is the result of the clause in the “Fisheries” chapter regarding the international arrangements.

At this point we have no other areas. And I'll leave it up to our legal counsel for the other part of the question.

Mr. James Aldridge: Thank you, Madam Chair.

There is one other provision in respect to consultations concerning international agreements. It's in the “Wildlife and Migratory Birds” chapter, paragraph 96, page 149 of the English version. I apologize to members who are working from the French version with different page numbers. In any event, it's the “Wildlife and Migratory Birds” chapter, paragraph 96.

One of the major principles here is that because of the location of the Nisga'a right against the American border, as Mr. Nyce has said, the fact of the matter is that these agreements can materially affect the entitlements of the Nisga'a Nation under the treaty. So it's extremely important that the Nisga'a have the opportunity to be consulted.

We should point out, Madam Chair, for the information of all committee members, that the term “consult” or “consultation” is a defined term in the Nisga'a treaty. It doesn't simply mean the ordinary term “consultation”, which obviously is used a lot and people might disagree about what it means. In fact the term “consultation” is quite precisely defined in the “Definitions” chapter of the treaty. For your reference again, in the English version that definition is on page 5 of the definitions.

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The point is to enable the Nisga'a to deal with the crown and make sure that the crown does not, through international agreements, unreasonably diminish—or, hopefully, not diminish at all—the values of the treaty to the Nisga'a people.

The Chair: Monsieur Bachand.

[Translation]

Mr. Claude Bachand: Thank you Mr. Aldridge. I was just about to raise the issue of migratory birds because it too has international consequences. I also wished to raise the question of wildlife and game. A typical example would be the caribou of the Porcupine herd. I seem to recall having read somewhere that there were some problems on the lands located much farther north. The caribou are moving from Alaska to Canada, and to the great displeasure of the Americans, do not always stay within the proper borders. They cross it without a second thought. There is also a problem, I feel, in terms of bear, moose and wildlife in general.

If I have understood things properly, there are provisions for international arrangements that require you to consult on fisheries and migratory birds. In these chapters, are there similar provisions to cover game and wildlife in general?

[English]

Mr. James Aldridge: No.

[Translation]

Mr. Claude Bachand: Thank you.

[English]

The Chair: Go ahead, please.

Mr. James Aldridge: I'm finished.

The Chair: I'm sorry. I was chatting with the clerk on another point.

Ms. Karetak-Lindell, please.

Mrs. Nancy Karetak-Lindell (Nunavut, Lib.): Thank you, Madam Chair.

As some of my colleagues have said, I too am very privileged to be a parliamentarian here, to be able to be on the government side to listen to your excellent presentation. It really is very self-explanatory. I do want to thank you for the presentation.

Having gone through a similar process with our Nunavut land claims, I certainly wish you success. I will be sure to give you my support in my role as a member of this committee. I too wish, as Ray was stating, that we had been able to pass this and ratify it before the end of yesterday.

I was in the House of Commons throughout the debate, listening to the opposition and some of their statements. I remember one of the members talking about apartheid, comparing this to what happened in South Africa. I was very disturbed by those comments and, frankly, very insulted that they would take the opinion of someone who lives clear across the world versus your expertise.

This morning as you were speaking, you were talking about your involvement with the process and the amount of years you have spent dealing with this issue. If someone would care to count the number of years, it probably totals over 100 years of expertise, yet someone from the official opposition can take the word of someone who doesn't even live in Canada versus his fellow Canadians' expertise. I find that a real insult to your knowledge. It is also a lack of respect for aboriginal concerns and issues.

The other part I'm having great difficulty with is this: the official opposition continuously talks about the amount of money that we spend, especially on aboriginal issues, yet at a committee we approved a budget of over $200,000 to do work that has already been done. They are forcing us to spend taxpayers' money on what I feel is a duplication of the process, a duplication of hearing probably the same witnesses saying the same things.

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I find that quite hypocritical. On the one hand, they're saying they don't want to spend money, that they're trying to save Canadian taxpayers money, and yet they're willing to spend a quarter of a million dollars, again, in hearing the same arguments that have already been heard. Also, they seem to do it in the spirit of not recognizing a part of the Canadian Constitution that recognizes and specifically clarifies our aboriginal rights.

So I see us spending Canadian taxpayers' dollars in defying something that's written in the Constitution. I have a hard time trying to understand the justification of the process we're doing. I know that part of our job as a committee is to listen to Canadians who have different views or maybe the same views. I am willing to do that as a committee member, as a learning experience, in order to be able to hear first-hand from more people in the province of British Columbia. It is also an opportunity to visit a part of Canada that I haven't been to yet.

Coming back to the comment about apartheid, I would like someone to explain to me and to other members of the committee why this isn't the same as what we are being led to believe—that this is apartheid in our own country of Canada.

The Chair: Dr. Gosnell, please.

Dr. Joseph Gosnell: I'll try briefly from our standpoint, Madam Chair, not only for the committee but for Canadians in general. I think it's important for this committee and other Canadians to recognize this current system we're living under, which is the Indian Act, directed by the Department of Indian Affairs.

It's important for Canadians to recognize that this legislative act was imposed upon aboriginal people. We played no part whatsoever in devising or adding to its contents—never. Right from the outset, a senior government deemed it necessary, for whatever reasons that came to them, to impose that act on our people. Today, we're still living under that act.

How do I compare that for the honourable members from the opposition side who say this is a form of apartheid? In my view, it is not.

Our people have made a collective decision to accept this document. What is this document to the Nisga'a Nation? It is our vision, Madam Chair, of what will be happening in the future. This is the Nisga'a vision. It is not only just a treaty to us. This is the vision of our nation that will take us out of this Department of Indian Affairs rut that we've been in for 130 years. That's what it means to me.

If my colleagues wish to further elaborate on that, so be it.

The Chair: Is there further elaboration?

Mr. Nyce.

Mr. Harry Nyce: Thank you.

The further elaboration is that our people were not allowed to vote until 1960. All that time, from when the governments were established—the Government of Canada and the Government of British Columbia—policies were established for land use, policies were established for elections, policies were established for a number of other things that affected our people. We did not have a chance to provide an opinion such as this.

Given that history, it is absolutely appalling to hear the official opposition indicating that this somehow deviates from the realities that we have lived under for many years.

Thank you.

The Chair: Mr. Leeson.

Mr. Nelson Leeson: Thank you, Madam Chair.

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I recall going to the exhibition in Vancouver about five or six years ago. I was trying to understand why they corralled us as native people and put us on these Indian reserves. One of the things that jumped out in my mind at the time—and this is only my own reflection—is that there were so many of us, they wanted to keep us from utilizing the lands as we and our ancestors always had. So they put us on these Indian reserves and started making promises about how they were going to take care of us, thus not allowing us to go out onto the lands. Other people made plans for those lands.

The first Indian acts were before Confederation. I believe the current one goes back to the late 1870s. My understanding of history is that South Africa got their model from the Indian Act, and brought it over there.

So that's something to think about.

The Chair: Ms. Davies, please.

Ms. Libby Davies: Thank you, Madam Chair.

I guess a lot of the attention so far has gone to the final agreement itself and the process that led up to it, the legal ramifications. What you've told us a little bit about today—I think this is very important—is how, at the end of the day, this document translates and transforms Nisga'a people's daily lives, whether it be education or training or economic development. You've touched briefly on the governance issue.

To me, then, that's what's really important: How does this document move us to an environment where full equality is recognized for the Nisga'a people and people's lives are actually improved?

There's been so much misinformation it's almost hard to figure out where to focus questions, but one of the more interesting questions, and one of the more curious, has been about property rights. In fact, I thought it was interesting to read in one of the papers that the leader of the Reform Party said that the Nisga'a treaty meant that we were bringing socialism to Canada.

I was actually quite delighted to think, well, finally, we're having socialism in Canada—

Voices: Oh, oh!

Ms. Libby Davies: —but I think it was wishful thinking on behalf of the Reform Party. What they were trying to put forward is that somehow people are being dispossessed of individual property rights.

So I'd be interested if you could provide us with examples or background of where land is provided to individual aboriginal members rather than collectively to the community as a whole. How do you look at property rights and collectivity versus the individual?

The Chair: Mr. Aldridge.

Mr. James Aldridge: If I may, Madam Chair, I'll commence.

With respect to the suggestion that the Nisga'a treaty is somehow deficient because it fails to require that all of the land be divided up somehow and distributed to individuals as opposed to being held as an estate, fee simple, by the Nisga'a Nation, one of the things that struck us, as we listened to those suggestions made by the leader of the opposition and others, is that these are not new ideas.

In fact, the committee might be interested to note that in 1871 in the United States, a U.S. congressional committee reported the following:

No proposition is better established in the American mind than that the welfare of a state and happiness of its citizens require that the lands be held in private proprietorship, and in tracts sufficiently small that each may be cultivated and managed in person by its individual owners.

That led to the congressional committee and the debate that followed over the course of the next several years. In 1887 the U.S. Congress passed an act that is very famous, or infamous, in the history of the U.S.-first nations relationship, the General Allotment Act. It's also referred to as the Dawes act; its sponsor was Senator Henry Dawes of Massachusetts.

Madam Chair, for your information, I'm referring for this little bit of history to the pages of a book written by Thomas R. Berger, with whom I have the privilege to be associated. This is out of Village Journey, page 82. Obviously, I'll not read all of this, but it is quite interesting.

• 1110

He writes in the book that back in 1887 the supporters of this bill:

claimed that individual proprietorship of land was necessary for the Indians to advance toward full participation in American life. The act authorized the division of communally held reservations into individual parcels or allotments of 160 acres for each Indian family head and eighty acres to each single Indian over eighteen. Congress wanted the Indians to give up hunting and fishing and to become farmers.

I'll skip a bit in the book. Mr. Berger carries on:

President Theodore Roosevelt acclaimed the General Allotment Act to be “a mighty pulverizing engine to break up the tribal mass”. But tribal life proved to be far more durable than Congress anticipated. The legislation did not achieve its main purpose, the assimilation of the Indians, because it did not take into account the basis of Indian cultural life—tribal identity.

By the early part of this century, Madam Chair and members of the committee, the General Allotment Act was completely repudiated. It was recognized as having caused so many problems, it was rejected. It was observed that, indeed, rather than improving the lot of the Indian people, the General Allotment Act had left them much worse off.

Obviously, I won't go into the detailed history. You might want to refer to Village Journey.

That's one 19th century experiment with the notion of imposing only individually held parcels of land—in law, we say “held in severalty”—as has been suggested in the current debate, but there are others. I could refer to them very briefly, if the committee is interested.

The Manitoba Act, under which the province of Manitoba entered into Confederation, includes a provision, section 31, under which, as a result of the negotiations between the delegates and representatives of the provisional government in Manitoba at the time, the arrangement was this: That 1.4 million acres of land in the province of Manitoba would be selected, allotted, and granted to the individual children of the half-breed heads of families. It would be granted to the said children respectively.

That's what the act said. There's currently litigation underway with regard to that section, but the fact remains that the vast majority of that land did not end up in the hands of individuals. Ten or fifteen years later, it had pretty well all been dispersed and there was no Métis land base left as a result of that section.

In the Alaska native claims settlement that Mr. Berger's book is about, there was another experiment requiring aboriginal people to take individual land holdings owned, in that case, by village corporations. Again, if you read Mr. Berger's book you'll see many of the problems that flow from that.

Madam Chair, why do I go through all of this? Only to point out that what all of those approaches have in common is that the form of individual land ownership was imposed from governments onto the aboriginal people. What the Nisga'a treaty does is start on the effective date by saying to the Nisga'a Nation, which is a legal entity, here is the estate in fee simple.

Under the treaty, the nation owns the estate in fee simple to all of Nisga'a lands. The treaty says the Nisga'a Nation can dispose of any estate or interest in any parcel of that land essentially as they decide, in accordance with Nisga'a laws. It won't be individual leaders who make that decision whimsically. There will be governmental decisions establishing policies. They will decide to what extent they move towards individual property ownership, with the minimum guarantee set out in the treaty, as referred to in the submission yesterday by federal government witnesses.

Mr. Wright can speak about the way in which that might be approached, but the key point I wish to make is that this is a matter for the Nisga'a to decide, not something to be imposed on them from outside. The suggestion that owning the mass of the land collectively is somehow socialistic surprises me. I suppose that would mean the ownership of crown land by federal and provincial governments is somehow socialistic. We have a different view.

The Chair: Mr. Wright, a short answer, please.

• 1115

Mr. Edmond Wright: Thank you.

The other day the leader of the official opposition tried at length to demonstrate stepping outside the box. Well, we believe the final agreement is stepping outside the box.

We've developed a number of legislations that our people are reviewing today and will continue to review into the future. Hopefully by the effective date they will be ready to adopt them, because they will be fully involved.

We will have a Nisga'a land title system and we'll have a Nisga'a land registry. The land registry will register the total of the holdings of the Nisga'a nation, including all those interests I mentioned earlier—the licences, rights of way and so on.

Today we're under the Indian Act and we have certificates of possession. Of course, under the Indian Act you can get leases and so on, but a lot of our people also just occupy certain lands through band council resolutions. On the effective date, we must guarantee that certificates of possession will be brought forward. We will be calling them, on the effective date, Nisga'a village entitlements.

They will be very similar to certificates of possession, whereby they will only be transferable to Nisga'a citizens who live in that particular village. Of course, they'll be transferable to the village for public purposes and so on. We will have progressively more ability to move them around.

The next level will be the Nisga'a Nation entitlements, which will be transferable to any Nisga'a citizen in the valley, or wherever they live. They will also be transferable to the village, the nation, a settlement trust or a housing authority, and the village will be able to take them for nation or village purposes.

I believe it's very important to point out that in the final agreement we did not put the chapter on land titles in there for nothing. We had to demonstrate that if we were moving from village entitlements and nation entitlements, we would ultimately have people who would want to move into the provincial land title system. Therefore we had to describe the provincial system and how we would go about using that, so we would step in line properly and the people in the land registry offices of British Columbia would be comfortable moving a parcel of land and raising title in the provincial system.

We will be doing that, and I think a whole lot of our people will be going to that because they will want to go to the banks or funding institutions to build their homes and businesses, like any other citizens in Canada.

Of course, the ultimate thing is the underlying title of the land will still be held by the nation because it will be transferred by the province. We will probably withhold mineral rights and so on, as the province does.

Thank you very much.

The Chair: Mr. O'Reilly.

Before you start, I would just ask that our witnesses try to keep their answers short so we can keep within the timeframe.

Mr. John O'Reilly (Haliburton—Victoria—Brock, Lib.): Thank you very much, Madam Chair.

Thank you for attending.

I certainly appreciate being part of this historic agreement. I look forward to returning to British Columbia and, at the insistence of the Reform Party, spending $500,000 or so of the taxpayers' money to hear objections. Some of them may indeed be valid; we don't know that yet.

I don't want to take this opportunity to slam the Reform Party, because the official opposition has a role to play, and I respect that role. Without opposition, the role becomes diminished. Perhaps there is something we have to look at further.

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As a committee member, my observations are fairly simple. Being under the treaty is entirely different from being under the federal Indian Act, and I want to spend less time on my question and more time on your answer, to elaborate on the difference.

I believe the Canadian people look at the old Indian Act, as we know it, and are maybe familiar with that, but they are not familiar with the rights of a treaty. There is a profound difference. I believe people have to fully understand, particularly from a legal point of view, the specific differences between the Indian Act and a treaty.

I want to conclude my question by saying I have no doubt this will pass this year, as soon as we can wrap up the hearings, because we have not heard any valid objections yet.

Perhaps I could ask about the legal differences between a treaty and the old Indian act, in some specific forms.

Thank you, Madam Chair.

The Chair: Dr. Gosnell.

Dr. Joseph Gosnell: Thank you, Madam Chair. I'm pleased to respond, in part, to your question on the major difference between the Nisga'a treaty and the current requirements under the Indian Act.

Under the terms of the Indian Act, we don't own the land. It is held in trust for us by Her Majesty, the Queen. I don't own the land upon which my home is currently situated, whatsoever. If and when the treaty comes into force, for the first time in my life I will be granted the ownership and will hold title to the land upon which my home is situated, just like you good folks here and other Canadians.

Now I ask you, is that so wrong? I don't think so. As my colleague Mr. Wright indicated, it will allow some of our people to do certain things they've wanted to do for many years, such as get into business and improve their way of life. To me, Madam Chair, that is a major change.

The Chair: Mr. Aldridge.

Mr. James Aldridge: Thank you for the question.

Unfortunately, bearing in mind the chair's imprecations of a moment ago, it wouldn't be possible to outline all of the differences that exist. The president has already referred to one of the most profound changes. I suppose the other main subject area in which there is a profound change is in terms of the ability of the Nisga'a government to function without having to seek the approval of the minister for virtually every decision it makes.

The minister, and ultimately the minister reporting back to Parliament, will no longer have control over when meetings are held, how referenda are to be run, and all of the things that are set out in the Indian Act and the associated regulations, which essentially amounted to Parliament and the Governor in Council dictating to individual bands how to govern themselves. That will be replaced, of course, by the fundamental guarantees set out in the treaty, including the guarantees that are set out in the Nisga'a constitution. The Nisga'a will organize themselves accordingly.

It's important to note as well that in terms of the differences, the administration is far more affected than the legal aspects. Mr. Wright may want to comment on that, because he's been administering his band under the Indian Act for many years.

The Chair: Mr. Wright. No?

Okay. You may have another question, if you wish.

Mr. John O'Reilly: How much time do I have?

The Chair: You have about a minute.

Mr. John O'Reilly: Okay. I would ask you to continue with your answer on this.

Mr. James Aldridge: Here's the starting point. The Indian Act no longer applies. The land is said by the treaty to no longer be a reserve. It's not what's called section 91.24 land, which is land under the exclusive jurisdiction of the federal government.

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So what you have is a movement from the administrative and legal structures dictated by Parliament so long ago, which would apply to all Indians in the country, to a new system in which the land is held in fee simple. The owners of the land get to decide what to do with that land they own, and they get to enjoy the benefits of the resources on that land at a speed and in a manner they've determined—for example, the forestry provisions—subject to the transitional provisions.

A profound difference, which must be mentioned, is of course the tax exemption that's created under section 87 of the Indian Act, which was discussed yesterday at some length. I must say that the tax exemption under the Indian Act is far more limited than many people think. That's a separate discussion, but there is a tax exemption there, of course. That will be phased out after eight years and twelve years.

Under the Indian Act, Indian bands are not required to use their wealth and earnings to contribute to the cost of programs and services. Under the Nisga'a treaty and the own-source revenue agreements described yesterday, the Nisga'a will be paying back into the cost of programs and services.

So, really, how is it different from the Indian Act in every relevant way?

The Chair: Thank you. That's the end.

The round now goes to Mr. Konrad, please, of the Reform Party.

Mr. Derrek Konrad (Prince Albert, Ref.): Thank you very much.

I appreciate your being here. I've been interested in the energetic defence of the treaty you made this morning, whether or not I agree with you.

I'd like to make a couple of comments before I get to a question. Last night Parliament hosted a gathering of the Teachers' Institute on Canadian Parliamentary Democracy, and I'm sure that if they had heard some of the members of the Liberal Party talking about the waste of time and money in defending parliamentarians' right to speak on this issue, they'd wonder if they'd come to the right capital or had gone to some country where democracy was not honoured and part of the system.

I'd also like to make another comment. This may not be relevant, but Mr. Leeson stated that he wants his grandchildren to walk with dignity, respect, and prosperity. For your information, one of my grandparents was born on the Fisher River Indian reserve in Manitoba, and she walked with dignity throughout her life. She enjoyed some relative prosperity and earned the respect of all the people she knew. It wasn't based on her race or on any agreement. She was there as an individual living a life that was worthy of the respect that was accorded her.

Having got that off my chest, I do have a serious question here. It concerns a couple of items in this agreement. Talking about elected members of the Nisga'a government in section 53 on government, it says: “Nisga'a Lisims Government may make laws in respect of...the use, possession, and management of the assets, other than real property...”. It goes on to state that they can make imposed conditions, and that kind of thing.

On page 181, under “Liability”, it says: “No action for damages lies, or may be instituted against, an elected member, or former elected member...for anything said or done, or omitted” unless, of course, “the person has...been guilty of dishonesty, gross negligence or malicious or wilful misconduct”.

When every asset is held in common, that puts a lot of responsibility on the people who are in positions of authority. It puts at risk a lot of assets that are held in common. I just wonder if you could comment on that and if you don't think it would be better to diffuse the assets, thereby diffusing authority and responsibility at the current time under the agreement. Economic, political, and administrative authority seems to be in a very few hands.

I would like your comments on that, please.

The Chair: Mr. Wright.

Mr. Edmond Wright: Thank you. I'll just reference section 130. A lot of that information on no action of damages directly relates to and is exactly what is given to municipalities today.

• 1130

In the final agreement we mentioned a constitution. In our constitution, among ourselves we have actually already ratified the process that deals with the major asset we have, which is lands. We have put restrictions on the ability of our elected people regarding lands of certain sizes and disposition for certain lengths of time. There are sizes and lengths of time that are restricted for village lands. There are restrictions on lands and length of disposition for the nation's lands. If we go beyond the certain formulas that were agreed upon by our people when they ratified this constitution, then we must go to referendum.

It's not something whereby a half dozen of us sit together and make a motion and go completely beyond our constitution. We have a constitution that restricts us on how we deal with the assets. As I stated, the key asset is lands.

As for the other assets, such as money, within a certain number of days of receiving it from Canada and British Columbia, we must put the money into a settlement trust. There are certain rules under the Income Tax Act for a settlement trust. If we don't do it within a certain number of days, we're exposed like anyone else when it is left outside of the trust. Therefore we cannot be playing with money, huge amounts of money, that have not been authorized by our people to be withheld from the trust or spent for other purposes.

So there are a lot of guarantees. Therefore the issues on the damages and so on are very restrictive. They are administrative in nature, very similar to a municipality, because the nation itself has already spoken to the issues of the major assets—the money and the lands.

Mr. Derrek Konrad: Do I get more time?

The Chair: Just let me check.

Mr. Derrek Konrad: My light's on.

I appreciate the answer you gave me, that the release-type clauses are municipal types. But municipalities do not make investments and aren't able to enter into businesses of the type that I think are envisioned for the government of the Nisga'a Nation. So on that basis, the government may be taking risks or making investments that turn out to be poor investments. Can the lands, even though you can't make laws regarding them in many cases, be seized as assets?

The Chair: Mr. Aldridge.

Mr. James Aldridge: Yes, these are very sensible questions, and it would take a lot longer than we have to explain them.

The answer is basically this. Land can only be disposed of once the Nisga'a Nation decides it can be disposed of. Accordingly, the extent to which it can be made available as security, for example, or exposed to seizure will be something the Nisga'a Nation will decide. The liability provisions you've referred to are, as you've noticed, based upon the Municipal Act type of liability provisions that exist there. Because of the possibility of commercial ventures, however, it was necessary to make adjustments in order to make the whole thing work. It would be too lengthy to go through all of that. We could certainly have somebody put together details on it.

The main point is this, though, if I can conclude. Members shouldn't read the treaty as though it sets in place forever all of the details of the regime. The treaty is largely aimed toward the effective date—on the effective date, the Nisga'a Nation will own...etc. Then the tools are given to the Nisga'a Nation, acting as a whole, to receive prudent advice from professionals in the field and other people, including their own people, on how to structure their affairs in order to both seek economic gain and protect themselves against undue liability. So we believe the tools are there. They will then make the decisions themselves, not through negotiations with Canada and British Columbia but internally, as any prudent person would, as to how to protect their assets while at the same time being able to engage in economic activity.

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The Chair: Excuse me, you're over, as I'm sure you know.

Mr. Derrek Konrad: I'll just ask for the written information, please.

Mr. James Aldridge: What I indicated is that if there are specific questions, Madam Chair... The liability provisions speak for themselves. I heard one specific question about exposure of land to seizure, and we can certainly get back later with the clause reference.

The Chair: If there are any documents you wish to table, you can provide them to the clerk. The clerk will then make copies and distribute them to all members together.

Mr. James Aldridge: I understand. I just want to make sure we're actually being responsive to the questions.

The Chair: Yes, certainly. Any documents you wish to table, table to the clerk, and they will be distributed to all members.

[Translation]

Mr. St-Julien.

Mr. Guy St-Julien (Abitibi—Baie-James—Nunavik, Lib.): I would also like to congratulate all members of the team for the excellent work they did on behalf of the Nisga'a people and the future of the Nisga'a people. I am pleased to have made your acquaintance. I would like to take this opportunity to speak to you about taxation.

I represent the largest electoral district of Canada's ten provinces. It is 802,000 square kilometres, with a population of 100,000 people, including 9,000 Inuit and 13,000 Cree from James Bay, Algonquins and the southern population. For a number of years now, the Inuit in Nunavik have been subject to the municipal system. They have 14 municipalities. They pay federal, municipal and school taxes. These municipalities are subject to the same system as all other municipalities in Quebec.

My two questions are for Mr. Gosnell, or any other members, and have to do with their lands. Have you planned for any provisions that would allow you, in 25 or 50 years, to ask for an expansion of your land, either to the federal government or the British Columbia government? I know that your land is approximately 2,000 square kilometres. Have you planned to request an expansion of this land?

[English]

The Chair: Dr. Gosnell.

Dr. Joseph Gosnell: Madam Chair, I am pleased to respond to your questions.

Can we add to Nisga'a land in the foreseeable future? Yes, there is a paragraph in the treaty that enables us to do that. But certainly, as indicated by the document, I believe we need the approval of British Columbia. Do I stand to be corrected on that?

Mr. Edmond Wright: And Canada.

Dr. Joseph Gosnell: And Canada as well. But certainly we can add to Nisga'a land.

The Chair: Can I have a clarification from Mr. Wright on that?

Mr. Edmond Wright: There are two models on being able to add to the lands. Within Nisga'a lands, if we buy a parcel of a fee simple land from someone else—and for your information, some of our corporations own fee simple lands that are registered under the crown today—and we want to convert them into Nisga'a lands, we can.

The only way we can add to Nisga'a lands on the outer borders of Nisga'a lands in the future is if they're adjacent or abutting Nisga'a lands. That would be a purchase or whatever from some private holder. But then we would have to go to the two governments to get their approval to have it added as Nisga'a lands.

The Chair: Thank you.

[Translation]

Mr. Guy St-Julien: Thank you very much.

My second question has to do with volumes of water. At the moment, we are speaking a great deal about water in Canada. There is discussion of water reserves for domestic, industrial and agricultural purposes. Have you signed any agreements concerning water with British Columbia?

[English]

The Chair: Mr. Nyce.

Mr. Harry Nyce: Yes, there is a provision for water, and we did extensive research with provincial authorities regarding the capacity that our Nisga'a Nation will have under the treaty. We're very pleased that we will participate in access to the water in the future.

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[Translation]

Mr. Guy St-Julien: In conclusion, sirs, I must say that I agree with the comments made by the Liberal MP from Nickel Belt, Mr. Raymond Bonin. I too am ready to vote this afternoon. Thank you very much.

[English]

The Chair: The order of the day is to hear from our witnesses.

It's your turn, Mr. Bachand.

[Translation]

Mr. Claude Bachand: I have an admission to make, Madam Chair, and that is that since I have been on the Indian Affairs Committee, I have had an intellectual fantasy. My fantasy is to find a mistake or an oversight in an agreement. Unfortunately, my fantasy has never been fulfilled, and I would like to fulfil it today. Only the people who are here can either crush my hopes or allow them to come to fruition. It seems to me that by I have found something that you have perhaps not thought of.

You said that title to your home and your land would now belong to you. Moreover, I have already seen a list provided to me by the Nisga'a, in which all the parcels and buildings are set out.

What we have here, then, is a transfer of community property to private property. There are many more disadvantages to community property. For example, you cannot make a loan by putting your house up as collateral. You would he prohibited from doing this. But there were also advantages: your houses and your lands could not be seized. Here then is my question.

Suppose that I am a Nisga'a, and that you have assigned to me a lot with a house on it and that I decide, because it now belongs to me, to sell this lot or this house to a white person, to someone who is not from Nisga'a lands, to someone who leaves Vancouver and decides to come and buy the house that I, a Nisga'a, have put up for sale. Is there not a danger that, in a few dozen years or a few hundred years, the privately owned properties would be transferred to white people and that the whole process would erode the philosophy underlying the document and the treaty? I can see positive signs for my intellectual fantasy. There appears to be a great deal of consultation going on, Madam Chair.

[English]

Mr. James Aldridge: The consultation was to determine which of us would assure Mr. Bachand that there's nothing we haven't thought of.

Voices: Oh, oh!

The Chair: You may all wish to do that.

Mr. James Aldridge: Under the treaty, in the “Nisga'a Government” chapter, paragraph 44, page 167 in the English version, Nisga'a government has the authority to make laws including:

(d) the conditions on, and restrictions subject to which, the Nisga'a Nation, a Nisga'a Village or a Nisga'a Corporation may create or dispose of its estates or interests in any parcel of Nisga'a Lands;

(e) the conditions or restrictions, to be established at the time of the creation or disposition of an estate or interest of the Nisga'a Nation, a Nisga'a Village or a Nisga'a Corporation in any parcel of Nisga'a Lands, in respect of that and any subsequent disposition;

Nisga'a government could, if it wanted to, enact a law saying that when they, for the first time as a nation, pass this title into the individual Nisga'a's hands, that's subject to a restriction that says, for example, hypothetically, “But you cannot transfer it to anyone other than another Nisga'a”. Earlier, Edmond said in the transitional period there might be rules such as that to protect it.

However, in the long term, would that be a sensible idea? What would it do to the economic value of that property, in terms of going out to raise money on it, if you limited the pool of potential purchasers? No doubt it would diminish the value.

So what the Nisga'a are going to have to decide for themselves, not because any other government tells them how to do it, is to what extent they wish to have such restrictions. It might vary from site to site. For a place of stronger cultural or sacred significance, perhaps they might say “This site should never fall out of Nisga'a hands.” But for properties in the village, in order to maximize their economic value, it may well be that they should be fee simples with no restrictions whatsoever.

These decisions will have economic consequences and cultural consequences. So in the treaty, what we negotiated is the authority of Nisga'a to make these decisions for themselves.

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If I have another five seconds, I can save a letter to the clerk by responding to Mr. Konrad's earlier question that I couldn't find the answer to. Paragraph 8 of the “Lands” chapter, on page 32, sets out the circumstances under which estates or interests of the Nisga'a Nation are not subject to attachment. It's a somewhat complex paragraph. You can read it yourself, but that's the paragraph I was searching for and was going to respond with in writing.

The Chair: Thank you. That's the end of that time.

Mr. Grose, you have the last five minutes. Then we're going to stop the televising, excuse our witnesses, and just do a little bit of administration for five minutes.

Mr. Grose.

Mr. Ivan Grose (Oshawa, Lib.): Thank you, Madam Chair.

I must apologize for being away for about an hour. I'm obviously wearing too many hats today.

I'm going to return to my favourite subject, which is money. I've often heard it said that if you don't have something, you like to talk about it. I don't know whether that's true or not.

In any case, from my experience on the public accounts committee, I found the government has a very poor record in being able to get an accounting for money they disperse. What I want is an assurance from you. My idea of accounting is not that we tell you how to spend the money. Heavens, we don't know much about that ourselves. But at the end of the day, can you assure me of an accounting of where and how the money was handled?

From my experience with you so far, I have no doubt that you can assure me of that. I think you'll be proud to show a record of what you have done and what you have accomplished. Can you assure me that you'll keep a proper set of books so that they would be open and available to the public accounts committee or to my taxpayers?

Mr. Edmond Wright: Thank you.

As I stated in the introduction, I've been the senior administrator for one of the villages since 1970. We've been doing that very loyally. I don't know what happens when they roll them all up and send them over to Ottawa, but certainly we have had required audits every year, and we share those annual audits with our band members.

Yes, in the treaty we are required to have standards equivalent to standards generally accepted in Canada. That's very important. Today we are fully involved in developing our new financial administration act. As you're aware, on the effective date, there will be no more Indian Act for us. Therefore we don't fall under the umbrella and the authorities of the federal Financial Administration Act. Therefore we must create our own financial administration act.

There will be a lot of responsibility to our own citizens from now on, as compared to previously being responsible to report to the federal Department of Indian Affairs. So yes, we are going to be doing that.

Today we have a group of new accountants we've brought on, because by the effective date, we want to be in step with tracking every expenditure and every process in finances so that we will not run into conflict in the future, when own-source revenue capacity is calculated so that we can contribute to our own government. There will be a very strict review of own-source revenue capacity, very similar to Canada's transfer payments to the provinces. We will be doing very similar processes in exchanging information with Canada and British Columbia.

Thank you.

Mr. Ivan Grose: That's quite reassuring, and I look forward to the results. Thank you very much.

Thank you, Madam Chair.

The Chair: Thank you.

Are those all your questions?

Mr. Guy St-Julien: That's it.

The Chair: Okay.

I want to sincerely thank our witnesses.

We've certainly heard an abundance of material from you today, which I'm sure all the members will take under due consideration. As you leave, I would like to call the televised portion of this meeting over. That is over now. Thank you very much.

Members, now I'll talk a little about some administrative matters about travel. That will be in camera. Thank you.

[Editor's Note: Proceedings continue in camera]