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]

Wednesday, November 3, 1999

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[English]

The Chair (Mrs. Sue Barnes (London West, Lib.)): I call this meeting to order.

Welcome, everyone. Welcome, Minister Nault, Mr. Tom Malloy, and Mr. John Watson, our witnesses for the day.

It is ordered that Bill C-9, an act to give effect to the Nisga'a Final Agreement, be now read a second time and referred to the Standing Committee on Aboriginal Affairs and Northern Development. It's the extract from the journals of the House of Commons of Monday, November 1, 1999.

Pursuant to Standing Order 75(1), consideration of the preamble and clause 1 of the bill are postponed. Therefore the chair now calls clause 2.

We'll start with our first witness. Welcome, Honourable Bob Nault, Minister. The floor is yours to speak to the members of the committee gathered here today.

The Honourable Robert D. Nault (Minister of Indian Affairs and Northern Development): Thank you, Madam Chair.

Colleagues, I'd like to begin by thanking the committee for inviting me here today.

My intentions are to speak from a prepared text for about 20 minutes or so, Madam Chair, and then go right to questions, if that's okay with the committee. I'll be in front of you for a good hour and a half or so, as I have an engagement around five o'clock, but if it's the wish of the committee, I certainly would like to leave the officials here to continue the dialogue.

The Chair: That would be agreeable, Mr. Minister. The time period noted on our agenda is 3:30 to 6:30, so if the officials would stay to answer further questions, if any, from the committee, that would be appreciated.

Mr. Robert Nault: As you know, Bill C-9 and the Nisga'a Final Agreement it proposes to give effect to are among the most important issues this committee will consider during the parliamentary session.

As members of this committee are aware, the Nisga'a Final Agreement is the first modern-day treaty to be negotiated in British Columbia. It resolves a number of issues for the people and territory included within.

In recent years questions that some people thought had been resolved prior to and at Confederation have proven to be alive and well. Specifically, Supreme Court judgments have determined that neither aboriginal rights nor aboriginal title were extinguished during the early settlement of British Columbia by Europeans. Those rulings have also stated that the act of Confederation between B.C. and Canada did not extinguish aboriginal rights or title.

Madam Chair, I want to make it perfectly clear that in addition to the moral responsibility I feel we have to conclude treaties in British Columbia, the courts have consistently encouraged governments to resolve these issues through negotiation.

During the second reading debate of Bill C-9, I heard the assertion made that obligations to aboriginal people in British Columbia have already been fulfilled. I think it is important to clarify that this is not the case. Indeed, statements like that show a fundamental misunderstanding of Canadian law, the Canadian Constitution, and the Charter of Rights and Freedoms.

The Nisga'a Final Agreement will for all time settle the matter of aboriginal rights and title for the Nisga'a people. It is the culmination of a process that began more than a hundred years ago, when the Nisga'a people first sought to negotiate a treaty with the crown. Madam Chair, let me emphasize that this is a full and final settlement of Nisga'a aboriginal rights and title. This is a key point, not just for the Nisga'a people but for all British Columbians, and indeed all Canadians.

For the first time since the initial contact with European settlers, the Nisga'a have achieved clarification of their rights to make decisions pertaining to their own governance and future. The settlement of Nisga'a aboriginal rights and title means that certainty will have been achieved. As a number of honourable members pointed out during second reading debate, this certainty is key to economic development in British Columbia. The Nisga'a Final Agreement puts us on the road to achieving certainty throughout the province, which will benefit everybody.

Madam Chair, I followed the second reading debate with great interest, as I am sure all members of this committee did. I was impressed with the understanding of the Nisga'a Final Agreement that most members displayed. However, I remain dismayed by the myths and inaccuracies some members insist on repeating. However, I remain dismayed by the myths and inaccuracies that some members insist on repeating. The perpetuation of these myths is not conducive to an informed debate, and I am sure it is quite insulting to members who have made the effort to understand the Nisga'a Final Agreement.

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I know that some members of Parliament are fundamentally opposed to the Nisga'a agreement for philosophical reasons. If that was the approach being taken in their opposition to Bill C-9, I would be quite happy to have that debate with them. However, there has been an attempt so far to avoid the larger issue and instead to discredit the Nisga'a treaty through inaccurate information. The examples abound. Let me deal with a few of these myths one by one.

Myth number one: that the Nisga'a Final Agreement does not guarantee equal rights for women. Anyone who cares to read the agreement will quickly see that this is not true. First of all, chapter 2, paragraph 9 clearly states that “The Canadian Charter of Rights and Freedoms applies to Nisga'a Government in respect of all matters within its authority”. It doesn't get much clearer than that, Madam Chair. All of the clauses of the Constitution that guarantee equality and rights for women continue to apply. Chapter 2, paragraph 8 makes it clear that sections 25 and 35 of the Constitution Act, 1982, remain in full force. As I'm sure most members are aware, section 35 guarantees that all aboriginal and treaty rights are held equally by men and women.

Myth number two: that the Nisga'a Final Agreement in some way changes the Constitution. Once again I refer members to the text of the agreement, specifically paragraph 8 of chapter 2. For the record, let me quote from that paragraph: “This agreement does not alter the Constitution of Canada”. I don't know how the treaty could be much clearer on that point.

There are numerous myths concerning the implications of the Nisga'a Final Agreement on non-Nisga'a people. Perhaps the most persistent and inaccurate of these is that there will be taxation without representation. Once again I'll quote from the agreement, specifically chapter 16, paragraph 1: “Nisga'a Lisims Government may make laws in respect of direct taxation of Nisga'a citizens on Nisga'a lands”. Madam Chair, there is no authority for the Nisga'a government to tax non-Nisga'a people.

I have heard members make reference to paragraph 3 of chapter 16. I have to say that their reading of this clause is flawed at best and deliberately misleading at worst. That section merely recognizes that the parties to the agreement may in the future seek to enter into administrative agreements regarding taxation. It does not provide taxation authority to any of the parties, but simply recognizes they may want to discuss different arrangements in the future. Of course, any such arrangements would require the consent of the parties.

Other myths concern the relationship between non-Nisga'a residents and Nisga'a governmental institutions. Again the reality reflected in the agreement is quite different from what some would have us believe. With regard to private property, all current interests are protected. Individual non-Nisga'a landholdings were never on the table and are not part of the agreement. In fact, the Nisga'a government cannot levy taxes for services it may provide to non-Nisga'a residents of Nisga'a lands.

The manner in which the Nisga'a government is to deal with non-Nisga'a residents is clearly established. Nisga'a government will have an obligation to give full consideration to the views of non-Nisga'a area residents should it contemplate any action that would significantly affect their lives, and any decisions taken by the Nisga'a government will be subject to judicial review. The protections afforded under the Constitution and the charter will continue to have full effect.

I should also point out that the Nisga'a government will have the authority to grant full Nisga'a membership to anyone it chooses. The Nisga'a recognize that there may be those within their lands who, regardless of their heritage, may want to take on the responsibilities and obligations of membership, and they may take steps to accommodate these individuals.

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Madam Chair, the agreement also recognizes the right of the Nisga'a to establish elected public bodies like school boards and health boards. Non-Nisga'a residents will enjoy full rights to run for positions on these boards and to vote for the candidates of their choice.

Another myth being perpetuated is that the Nisga'a government is gaining exclusive legislative jurisdiction in various fields. Again, this is false. The agreement is quite clear in terms of jurisdiction, and there will be no areas of exclusive Nisga'a authority. There are matters that are internal to the Nisga'a, where Nisga'a laws will prevail if there is a conflict.

But I would challenge opponents of the agreement to explain why they feel the Nisga'a themselves should not have primary authority over their language and culture. In areas such as land use planning, the Nisga'a government will have authority roughly parallel to that enjoyed by municipal governments. If it makes sense for municipalities to have authority in these areas, why should the Nisga'a government not have similar authority?

In other areas, such as environmental assessment or forestry management, Nisga'a laws will only apply if they meet or exceed comparable federal or provincial standards. In other words, if the Nisga'a want to impose tougher environmental standards than we do on ourselves, they may do so. However, they cannot relax existing standards.

And of course federal and provincial laws will apply on Nisga'a lands. Examples include the Criminal Code of Canada and B.C.'s Family Relations Act.

Madam Chair, there are no residual powers left to the Nisga'a government. In other words, unless the agreement specifically defines legislative authority for the Nisga'a government, that authority does not exist. Obviously I feel quite strongly that the Nisga'a Final Agreement meets the needs of the Nisga'a, of British Columbians, and of all Canadians. It deserves to be supported on its merits alone.

But let us also keep in mind the consequences of defeating Bill C-9. Such action would kill the agreement. There are those who maintain they don't want to kill the treaty, only to amend it. But when two of the three parties that negotiated in good faith have already ratified the agreement, moving to amend would be the same, Madam Chair, as killing it.

Where would that leave us? Where would that leave the Nisga'a people? It would mean the continued application of the Indian Act to the Nisga'a people. Members opposed to the treaty called the Indian Act racist during the second reading debate, but ironically, it is they who would see the Nisga'a forced to live under it for the foreseeable future. It would mean continued uncertainty. It would mean foregone investment and economic activity. It would mean decades of litigation.

And, Madam Chair, it's odd that the members who usually criticize so-called judicial activism seem to be prepared to put the entire future of B.C. into the hands of the courts.

We are nearing the end of a long and often difficult journey. There are some who have been quite critical of the process, and I'd like to make a few comments on that subject.

First of all, the parties to the final agreement made great efforts to engage those who will be affected by it, both Nisga'a and non-Nisga'a. Indeed, around 500 consultation and public information sessions were held during the negotiations. Some have criticized that process as being insufficient. However, in many places the agreement reflects input that was received through public consultation. This is especially true of the many protections for non-Nisga'a individuals and communities, which were built into this agreement.

Then there are those who are opposed to the ratification process. On this point I should be especially clear. The agreement outlines a process agreed to by all parties acting in good faith. To act in a manner other than that to which we have agreed would demonstrate an incredible degree of bad faith. In my opinion, to advocate such an approach is contrary to the ideals which we, as elected officials, are supposed to uphold.

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Here are the facts: the Nisga'a Final Agreement was endorsed by more than 60% of eligible Nisga'a voters and by more than 70% of those who actually participated in the ratification vote.

Some members have suggested that 60% of eligible voters is not good enough. It is ironic that many of these individuals receive votes from only 26% or 27% of the eligible electorate in their ridings, yet nobody is challenging their legitimate right to sit in Parliament.

Having been ratified by the Nisga'a people themselves, the agreement was approved by the British Columbia legislature. I understand this followed the longest debate in that legislature's history. Now we are following our own legislative process, one enshrined in the constitution and based on hundreds of years of parliamentary democracy.

Is the Nisga'a Final Agreement perfect? Probably not. Is the Nisga'a agreement a panacea that will bring instant prosperity and provide an overnight cure for decades-old social problems? Again, the answer is no, but nobody is claiming otherwise.

Is the Nisga'a agreement an honourable and practical approach to problems that have plagued us for far too long? To that question, I would give an emphatic yes. It will give the Nisga'a people the tools they need to develop their own solutions to the economic and social challenges facing them. After too long a wait, they will once again be responsible for their own destiny and answerable to future generations for what they make of this opportunity.

In the broader sense, the Nisga'a Final Agreement provides us with one model of how Canada's relationship with aboriginal people can and must progress in the 21st century and beyond.

Madam Chair, I believe the next 20 years will see aboriginal issues take on a mainstream prominence in Canada that would have been unthinkable even a decade ago. Recent court judgments support that viewpoint. Time and again, we're seeing aboriginal people successfully advocate for and receive recognition of their aboriginal and treaty rights.

Given this situation, I believe we have two options. We can continue to litigate, knowing full well that to do so leaves us with no control over the outcome and reinforces an adversarial relationship with aboriginal people, or we can sit down at the table with our partners. Where treaties don't exist, we can take the initiative and negotiate a solution that works for all parties. Where we have different interpretations and understandings of historic treaties, negotiation is the appropriate means for finding common ground.

This process is not something we should be afraid of. As Canadians, it is in all of our best interests to embrace the process. All of us, native and non-native, have the opportunity to create the kind of society we want to live in as opposed to sitting back and waiting to see what we end up with. This context makes the Nisga'a final agreement that much more significant. It proves that when all parties put their best efforts forward, negotiations do work. It proves that we can come up with practical and workable alternatives to the status quo. Its ratification will serve as a catalyst for the difficult yet vital work ahead of us.

Madam Chair, this committee has an important role to play in the process. Your action on this legislation will have consequences for decades to come. I wish you well in your deliberations.

As I said at the opening of my comments, I'm here to answer your questions to the best of my ability. If there is something I can't answer, I'm sure some of the officials can give you the details. If we're stuck, we certainly will get back to you, Madam Chair, because it's very important to all of us in this room to have a constructive debate.

Thank you very much.

The Chair: Thank you, Minister.

The first round of five-minute questioning will commence. I assure all of the honourable members that I'm planning to stick to the five-minute time limit for both the question and the answer to ensure that as many questions as possible get in.

Mr. Scott.

Mr. Mike Scott (Skeena, Ref.): On a point of order before we begin, Madam Chair, since the Reform Party is the only political party at the current time not supporting the agreement, I would ask that the committee consider having the questions divided equally between Reform and the other parties supporting the agreement.

The Chair: I'm afraid that's not a point of order. Nonetheless, I remind members that we have rules on this committee. The rules give the order. That was passed by a majority.

Mr. Bonin.

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Mr. Raymond Bonin (Nickel Belt, Lib.): Madam Chair, seeing that there is only one party opposed to the agreement, could we call the question now?

The Chair: We are here for witnesses. I will take a list of witnesses. The Reform Party, as the opposition, has the first right of five-minute rounds if they wish to use it.

Mr. Scott, do you wish the floor?

Mr. Mike Scott: Yes.

The Chair: Please commence; your five minutes starts.

Mr. Mike Scott: Mr. Nault, there are a number of things you said in your statement that I'd like to challenge.

I'd like to begin with the taxation without representation issue. I would like to quote directly from the agreement, chapter 16, paragraphs 3 and 4 on page 217. It says:

From time to time Canada and British Columbia, together or separately, may negotiate with the Nisga'a Nation, and attempt to reach agreement on:

a. the extent, if any, to which Canada or British Columbia will provide to Nisga'a Lisims Government or a Nisga'a Village Government direct taxation authority over persons other than Nisga'a citizens, on Nisga'a Lands; and

b. the coordination of Nisga'a Lisims Government or Nisga'a Village Government taxation, of any person, with existing federal or provincial tax systems.

And paragraph 4 states:

Nisga'a Lisims Government and Nisga'a Village Governments may make laws in respect of the implementation of any taxation agreement entered into with Canada or British Columbia.

Now, we recognize that this, at the present time, doesn't give Nisga'a Lisims government the ability to tax non-Nisga'a people living on Nisga'a lands, but we recognize that certainly opens the door and provides an opportunity for that to occur in the future.

Is the federal government prepared to revisit that section, and if you do not agree with taxation without representation, to amend that section so that possibility is removed in the future?

Mr. Robert Nault: Well, as I said in my opening comments, as we all know, since the process we're undertaking relates to treaties, it can't possibly be acceptable to have amendments to the treaty.

If I can be very clear with the committee, as I tried to be in my opening comments, this is a take it or leave it proposition. This isn't a piece of legislation, as we would normally have in front of ourselves in the House. This is a treaty with a first nation government, a provincial government, and a federal government. We'll either have to accept the treaty as it is, or it won't be ratified, and we'll have to go back to the bargaining table. But you can't just amend it here in the House and then carry on as if nothing has happened, because of course the house of cards completely comes down on us.

To answer the member's question, Madam Chair, no, we're not prepared to do that as a government. But I can say very clearly that it's the intention of the legislation before us and the treaty before us that there will not be taxation without representation.

Mr. Mike Scott: Madam Chair, since we're limited to five minutes, I wonder if the minister could be good enough to keep his responses short. He just had to say no; that's all we had to hear from him.

I'd like to go on. If we hear that the government is not prepared to take that section out of the treaty, which absolutely leaves the door open for taxation without representation, let's move on to what he considers a myth, and that's the fact that in many areas exclusive legislative jurisdiction has been handed over in this agreement. I would refer the minister to at least 14 specific areas in the treaty, where it states, under self-government provisions, that “in the event of an inconsistency or conflict” between a Nisga'a law under this paragraph and a federal or provincial law, the Nisga'a law “will prevail to the extent of the inconsistency or conflict”.

Does the minister not agree that this constitutes exclusive legislative jurisdiction?

Mr. Robert Nault: I don't want to be too long, because I know it frustrates the member that I may want to answer the question with more than a single yes or no, but I think it's important that we do elaborate.

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I want to allow the chief negotiator to answer a question about the concurrent aspects of the legislation. It is perceived by some in the opposition that there have been allocated to the Nisga'a people new powers that don't meet the needs of our constitutional family as we see it as it relates to law. So I'm going to ask Tom Molloy to answer that question on behalf of the government, and the rationale as he sees it, as he was at the table when the discussions took place.

Mr. Tom Molloy (Chief Federal Negotiator, Department of Indian Affairs and Northern Development): Thank you very much.

I think it's important to keep in mind that this treaty does not in any way, shape, or form change the list of powers and the division of powers between the provinces and Canada as set out in the Constitution Act, so none of the powers of either government are displaced by this treaty. It's what is known as a concurrent jurisdiction model, whereby the federal or the provincial government retains their authority, and at the same time the Nisga'a are given concurrent jurisdiction in those areas.

There are in constitutional law theories around when laws are in conflict or inconsistent with one another, as happens often in legislation enacted by either the federal government or a province, as to how and in what way the courts will interpret the conflict of the inconsistency. They've developed a series of laws and tests around that. Rather than relying on the jurisprudence in constitutional law to make those determinations, we have negotiated into the treaty the specific test that the courts will give in any such instance.

I think it's important to keep in mind that the word “conflict” is defined, and it means where the obedience of one law will result in the disobedience of another. So when you have a conflict, it's only to the extent of the conflict in those defined areas that the Nisga'a law applies. All other provisions of federal law in that area, or all other provisions of provincial law in that area, continue to apply.

The Chair: Thank you, Mr. Molloy.

For the second round, we'll go to the Bloc member, Mr. Bachand.

[Translation]

Mr. Claude Bachand (Saint-Jean, BQ): Madam Chair, I would first of all like to congratulate the Minister on his appointment. I would like to tell him that I empathize with him because he has a very difficult and complicated portfolio and I will do everything in my power to be cooperative, although it is the role of the opposition to question the government about its approaches. This is what I intend to do here, today.

I have travelled to Nisga'a territory several times and I must underscore the tremendous respect that my political party has for the members of the Nisga'a nation. We are always very interested in any issues pertaining to greater autonomy for the native peoples because of our political party's own objectives.

I have more of a political question for the Minister because I do not necessarily want to get into the technical nitty-gritty of the report. Before the discussion began, I heard the Minister say that debate would be brief and would last only a few days, or else he would have to impose closure. The minister should recall that the Legislative Assembly of British Columbia has already held extensive consultations.

Yesterday, I was very dissatisfied to see that the Reform Party and the government has submitted a list of 64 witnesses. That does not appear to jive whatsoever with the Minister's intent to bring the debate to a quick close. I don't want the debate to be concluded after two days, but I am not prepared to call 64 witnesses, to travel to British Columbia for a week of hearings, to return here to listen to the remainder of the witnesses and to then proceed with a clause-by-clause review of the bill. It seems to me that this is a far cry from a short debate and that this debate will go on and on. I do not believe that extended debate will be positive. Why go to British Columbia to reopen old wounds that are just beginning to heal? This is precisely what we would accomplish should we show up in British Columbia.

My question is very simple. Why has your government agreed to dance the tango with the Reform Party with respect to this final Nisga'a Agreement rather than resolving the issue very quickly? I have a hard time picturing you dancing the tango together. Right now, you're dancing the tango in front of swing doors, and everybody's getting hurt. Could you explain why your attitude has changed?

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[English]

Mr. Robert Nault: Thank you very much. I appreciate that question, because it's a very important one.

Yes, there's no doubt this minister has been very clear that there has been significant discussion, significant debate about the merits of the Nisga'a treaty and the negotiations that have been concluded.

I don't want you to get the impression that I've changed my mind, that I want this to go on and on, as some of the opposition have alluded that they'd like to see. I believe very clearly that to govern is to lead, and I've always believed that. It's the intention of this government and this minister to lead, but at the same time I want to be clear that we need to have a legitimate debate. We need a debate about where we're going as it relates to treaties and as it relates to land claims. If we're ever going to get by this sense that somehow this is a pervasive, unacceptable process by some, we need to make this a normal, everyday occurrence—that we'll negotiate with first nations and clarify the grievances of the past, so that we can get on with moving into the future.

I'd like to see the debate take place because I'm confident of the government's position, the government's policies and the direction in which we're going to be leading the file as it relates to the relationship. A new relationship with aboriginal people is going to be the one accepted by Canadians.

I'm looking forward to the debate with the opposition. If we can't get by that debate, Madam Chair, we'll never get to where we want to go with all those other agreements that we need to make with first nations right across this country.

So I've accepted that we need to go to B.C., and we'll have that debate. Sixty-four witnesses may seem like a lot, but with the week you'll have in British Columbia and with video-conferencing when you get back, I think you can get through the witnesses in an acceptable amount of time.

I'm still hopeful—and I say this publicly—that I'd like to not hold up this agreement unduly, because we have a responsibility to the Nisga'a people to get on with the new relationship. They've been waiting for over a hundred years. With all the work that's been done by ourselves, the B.C. government and the first nation, we need to make a decision, and it has to be a firm one.

I'm hoping this bill will be through the House by Christmas. As I said before publicly, that should be a reasonable amount of time for debate. Anything much longer than that seems to me to be a tactic by the opposition to delay a very important piece of legislation and work that we believe will define our relationship.

So I hope that answers your question. I'm not of the view that it can't be done by Christmas. If this committee is seized with its role and works very hard and long, we can get it done by that date.

[Translation]

The Chair: Have you any further questions?

Mr. Claude Bachand: No, not for now.

[English]

The Chair: Okay, time is up anyway.

Ms. Hardy.

Ms. Louise Hardy (Yukon, NDP): Thank you, Madam Chair.

Sometimes we tend to think that we're the only country facing these sorts of issues, but there's a Nordic autonomous area composed of three different areas that in fact have given a lot more to people based on their lineage than we have in this agreement and other agreements. I think it would be helpful for Canadians to understand that other countries have struggled with this and have come peacefully to terms that are really beneficial for everybody. Some of those autonomous governments have their own parliaments, their own stamps, their own flags, and a lot more power over their lives, culture and language than we're offering first nations people.

What I'm worried about is this agreement that we have to honour, because it's been negotiated and it has been a long process. Once it's implemented, is it going to be open to reinterpretation so that we're faced with the parties going to court for what the agreement actually means? Is it modern enough and clear enough that when it's actually put to the test, it will be an agreement that will lead to self-sustenance and responsibility for the Nisga'a people?

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Mr. Robert Nault: That's a question, of course, Canadians are all wondering about. As we move to define our relationship in a modern context with aboriginal people and we sign modern-day treaties, will it bring certainty, or will we be back at this some other time?

I could answer your question by referring you to the text, which has made it very clear that this is the conclusion of a long negotiation with the Government of Canada and the Province of British Columbia and the first nation to define the aboriginal and treaty rights of the Nisga'a people. It's our understanding that it brings complete certainty that there is no further need to expect that we will have to go to the courts to redefine.

You can imagine that from the Nisga'a people's point of view this is quite a risk in its own right and that it may have been more appropriate for the Nisga'a people to go to court and to use litigation to achieve the certainty that in fact was successfully arrived at during negotiation. I don't want to speak for the Nisga'a people, because they'll be speaking to you tomorrow, as I understand it, but they will tell you very clearly that this is a compromise. It's my view, and one I have shared with others, that it is a risk only taken because of the way aboriginal people are built: that they've always compromised, they've always been the ones to accept that we need to have a partnership and we need to have a relationship based on honour and trust—and that's what this agreement does—versus the adversarial role that we have forced them to get into by going to the courts.

So the answer to your question, and the short answer, is that certainty is there. It is a risk for the Nisga'a people, and a lot less risk for us as the government. I commend them for taking that opportunity to put to rest that relationship we're now going to form.

The Chair: You have time for another short question and short answer if you wish.

Ms. Louise Hardy: That's fine.

The Chair: Mr. Bonin.

Mr. Robert Nault: Madam Chair, perhaps I could answer the other question Ms. Hardy asked.

There's sometimes a perception that what Canada is doing is significantly unique. I had the opportunity last week to meet with a number of senators from Australia. In the meeting I asked them whether they would be willing to entertain answering for me whether, as some members of the opposition were suggesting, their legislation and their laws are the way Canada should go, and these opposition members were portraying it as a way in which Australia had somehow restricted aboriginal people in legislation. A number of senators said to me, “In fact it's just the opposite. We did the same thing Canada is doing now. We went to court over and over and over, and the courts continued to tell us that we had an obligation to negotiate and that aboriginal title existed, which should be dealt with.”

So Australia, as I understand it, changed its policy just a few years ago to reflect where I think this government and where this country should go and are now negotiating those agreements and are being very successful. And as I understand it, New Zealand did the same thing. They also decided that it would be best to negotiate versus litigate. It has cleaned up a lot of the business of the past and moved on with this future relationship that I think we need to build as Canadians with our aboriginal partners.

So don't get the impression that what we're doing in Canada is so far-reaching and that we should be patting ourselves on the back that we've not learned our lessons from others, because we certainly have.

The Chair: Thank you.

[Translation]

Mr. Bonin.

Mr. Raymond Bonin: Thank you, Madam Chair.

[English]

Mr. Minister, in I think it was 1996 I was a member of this committee and with Minister Irwin a delegation went to British Columbia to sign I think it was a framework agreement, or is it a tentative or preliminary—

Mr. Mike Scott: Agreement in principle.

Mr. Raymond Bonin: —agreement in principle. That's the term. And I remember that at the time the three signatories to the future agreement, before signing, understood and made very clear the framework for the negotiations—what will occur. This was a way for all stakeholders to request and require from the other two that they be serious about this and that this would lead to a real agreement.

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My reading of what took place since then, and what is taking place now, is that two of the signatories are satisfied that the parameters were followed, that the intent was followed, and are satisfied with those results.

I'm asking you as minister if you're satisfied that our negotiators respected those parameters and represented the intent of our delegation. I was part of it, so I feel commitment to this. Are you satisfied that we also, the other two parties, are satisfied, and are you, Mr. Minister, satisfied that our negotiators respected that commitment on our part?

Mr. Robert Nault: As you know, the framework agreement we work under in British Columbia is approved by cabinet. We follow the inherent right policy. The inherent right policy of course maintains that the charter will apply, that the Constitution will apply, that of course we want certainty without necessarily having to aggressively exceed the needs of the Government of Canada by pounding aboriginal people into the ground. So we have worked very hard on our policy that relates to Gathering Strength. Gathering Strength of course, as you know, is an initiative we implemented a few years back that is intended to change our partnership and our relationship.

I think this agreement meets that test. I am looking forward to the debate. There's going to be a debate, as you know, by some of the constitutional experts who are going to debate just what this agreement means. That is something we need to do. That's why I look forward to the debate in a number of areas—not the ones where people who are just naturally opposed to giving aboriginal people their rights that exist under a treaty or under aboriginal title, but to debate our relationship for the future, which is really what this discussion's about. That will also give me some input as to whether our policies are good enough, or whether they're too restrictive. Because in order to achieve certainty and to create an economic base, in this example in British Columbia, we obviously have a partner who's at the table with us. If that partner isn't happy with the policies of the Government of Canada, we'll proceed to go to court.

The framework agreement I understand has had some successes. If I'm not mistaken, and John can correct me, we've probably got over 20 AIPs now. Is that right, or is it less than that?

Mr. John Watson (Regional Director General, British Columbia Region, Department of Indian Affairs and Northern Development): We have 38 framework agreements, and we're in AIP negotiations with that number of groups.

Mr. Robert Nault: As you heard from John, we have 38 framework agreements in British Columbia, and are into AIPs with those 38 groups. So we're making significant progress in British Columbia.

So this debate, not the treaty itself but the debate, will define how reasonable my colleagues in the opposition will be for the other 38. It's my wish, of course—if I get to be minister longer than a year—to be here in front of you with the other 38 and get certainty to British Columbia's land mass and to create that economic community and economic base we so strongly need to have first nation people be a part of.

Keep in mind that this is a very practical solution to a complex problem. We have people say to us every day, why is it that aboriginal people are stuck with 78% to 80% unemployment? They blame the Indian Act. So here we enter an agreement that takes aboriginal people outside of the Indian Act, but it's not good enough. In this agreement we give aboriginal people a land base, an opportunity to be landowners in their own lands, by the way, but an opportunity to be a landowner so that they will be a major economic force in that part of British Columbia. But for some people that doesn't seem to be good enough.

• 1615

The financial resources that will be transferred will give aboriginal people, the Nisga'a people, an opportunity to create employment and to plan for the future. Some people are opposed to that. In the House of Commons today some people are looking for money for farmers, but then they don't want money for native people. I have a very difficult time understanding why that would be the case, because aboriginal people are the poorest of the poor.

So I see this as a legitimate process, and legitimate debate and one that—if I can answer my colleague again very clearly—is starting to pay dividends. We've only had the B.C. treaty process for six years, and we are at the tip of starting to see these negotiations concluded, and me coming to see you on a regular basis. I'd be very pleased to be here weekly with one of these treaties if I could get my negotiators to move a little faster. I've even offered them—kiddingly, of course, because the department doesn't do that—bonuses so they can move a little faster. Because I think it's important, Madam Chair, to aboriginal people that we do this.

The Chair: Thank you.

Mr. Scott, do you wish another round?

Mr. Mike Scott: Yes, Madam Chair.

Mr. Molloy implied—a little bit disingenuously, I might add—in his response to our questions on self-government that the fact that the agreement contains the words “in the event of an inconsistency or conflict”—between a Nisga'a law and a federal or provincial law—the Nisga'a law “will prevail to the extent of the inconsistency or conflict” does not imply legislative jurisdiction that would be considered supreme. I think the minister would have to acknowledge that this is at least controversial, since there are two separate lawsuits brought in British Columbia that go to the very heart of that question.

I'm again going to come back to that and ask whether the government would consider, just so that it is clear for everybody, to go along the lines they have in all treaties negotiated in Canada up until this point in time, which is to take the self-government provisions and separate them from the treaty so that they are not protected by section 35 of the Constitution.

Mr. Tom Molloy: Mr. Scott, I did not say “supreme”; I said “exclusive”. I think there is a difference between the two terms when we're dealing with the nature of laws.

With respect to removing the self-government portion from the treaty, that's part of the deal. One of the difficulties the government had in terms of concluding an agreement with the Nisga'a was the fact that up until a point in time self-government provisions were not considered to be part of the inherent right under section 35. And it was a result of the change in government policy that provided the impetus for them to conclude the agreement in principle.

Mr. Mike Scott: Mr. Molloy, you will concede that the wording “in the event of an inconsistency or conflict”, the Nisga'a law will prevail—

Mr. Tom Molloy: That's what it says, that's correct.

Mr. Mike Scott: Yes, you will concede then that in the event of an inconsistency the Nisga'a laws will be forever beyond the reach of the Parliament of Canada or the legislature of British Columbia.

Mr. Tom Molloy: To the extent that there is a conflict, just as it says, but the fact remains that the jurisdiction of Canada under the Constitution remains.

Mr. Mike Scott: But if there is a conflict or an inconsistency, Mr. Molloy, clearly the Nisga'a law prevails, and clearly that means that the Parliament of Canada, or the legislature of British Columbia, can never move to correct a situation that might occur in the future as a result of those clauses.

Mr. Tom Molloy: It could always amend its legislation to avoid a conflict.

Mr. Mike Scott: But they would be hollow amendments, because the Nisga'a legislation would prevail in the event of the conflict.

Mr. Tom Molloy: I guess we can argue this.

Mr. Mike Scott: You will concede, Mr. Molloy, that this is the subject of two legal challenges in British Columbia.

Mr. Tom Molloy: That's my understanding.

Mr. Mike Scott: So at least, Mr. Molloy, this is controversial.

Mr. Tom Molloy: It's certainly controversial in some quarters.

Mr. Mike Scott: Thank you. And you would concede, Mr. Molloy, that the Department of Indian Affairs and Northern Development's track record in court recently hasn't been very good.

Mr. Tom Molloy: I don't know, I'm not a spokesman for the department.

Mr. Mike Scott: I would refer you to the Marshall decision for an example.

The Chair: I want to interrupt and ask people to come to me for their questions, and then I will go.... We're not having a dialogue here; we'll do a question and answer, and you will all please go through the chair. Thank you.

Mr. Scott, would you like to pose a question?

Mr. Mike Scott: You would concede that as evidenced in Delgamuukw and the Marshall decision, for example, the Department of Indian Affairs does not exactly have a sparkling track record in court recently on issues of controversy like this one.

• 1620

The Chair: Minister Nault.

Mr. Robert Nault: I would agree with Mr. Scott that the track record of our policy of going to court to try to define or not define aboriginal rights may be considered by him to be a defeat for the Department of Indian Affairs. I don't see it that way. I see it as a victory for this minister and for aboriginal people. If it's suggested to him that somehow we have to win as non-natives in order to keep aboriginal people down, then let's have that debate, and we'll have it now.

As far as I'm concerned, the problem we have been trying to relate to the members in this last hour or so, Madam Chair, is that the policy of letting the courts decide what politicians should be deciding under agreements like this is much more effective because it's certainly the intent of the parties that what you see is what you get in this agreement. When you go to court, you don't necessarily ask it from a political point of view; you ask it from a point of law.

I don't know what Mr. Scott is referring to. I know he refers to winners and losers. As far as I'm concerned, the only objective of this government is to have a win-win scenario, and that's really why we're here.

The Chair: Mr. Finlay, please, for the second round.

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

I appreciate what the minister has said in answer to Ms. Hardy's question. I too was in Australia and New Zealand last summer, and I learned something about how they are dealing with aboriginal peoples, the Maori in New Zealand and the Aborigines in Australia. They give them a great deal more land than we've ever ceded or given under the Indian Act, or more than Governor Douglas bought on Vancouver Island, a great deal more land than any of us have even contemplated. I presume it's because they realize that for 10,000 years the native Indian peoples inhabited this land and governed themselves and traded the length and breadth of the continent. Maybe we should give them a chance to do it again. They might even lead us in some new and wonderful ways and get rid of some of the problems we have.

One of the concerns expressed now, after the agreement in principle—and here we are with Bill C-9 to ratify this, which I can assure you we're going to do, Mr. Minister—is that there has been some question that people were not consulted. To what degree were consultations with non-natives and other people in B.C. done? I would like to know from you, Mr. Minister, whether you are satisfied that the process was adequate. To what do you attribute the view that more extensive consultation is required?

Mr. Robert Nault: I'm going to give you the quick answer, and then I'm going to ask Mr. Molloy, who was there, to explain the consultation process as it unfolded during the negotiations from start to finish.

When we look at the fact that the B.C. legislature had the longest debate in its history—and that seems to be not good enough for certain people—that this discussion with aboriginal people has been going on now for a hundred years, with this particular first nation having asked to be at a table in order to negotiate some certainty while wanting to negotiate into Canada, not out, that certainly suggests to me that we have already had a certain amount of debate, a legitimate debate, a fairly lengthy debate.

That doesn't mean we can't have further debate to define what people think the responsibility of the Government of Canada is as it relates to aboriginal people and their aboriginal title and their treaty rights. It doesn't mean that we shouldn't have a legitimate debate about alternative policies.

One of the things I'm looking forward to in the debate with the opposition—there's only one opposition to this treaty—is not so much about pounding on the Nisga'a people about this specific treaty, because in this treaty the policy of the Government of Canada and the direction we believe we should go in are intertwined. But if someone has a better suggestion and a better way of approaching it to bring certainty to our legal obligation, I'd be very prepared and interested to hear it.

• 1625

So far, what I've noticed and what concerns me is that the opposition prefers to nitpick the deal. That's not really the debate at all. The issue is which policy of this particular discussion they don't approve of. So I want to leave that with my colleague.

I wanted Tom Molloy to lay out all the consultation that took place, so that Canadians who are listening and watching will know we didn't just dream this up a couple of months ago and decide we were going to bring it forward to Canadians for approval, that in fact there is a very extensive process out there to deal with aboriginal people and the needs of the non-native people within the area.

Tom.

Mr. Tom Molloy: Thank you.

There were a number of advisory committees in place for a large number of years in terms of the Nisga'a negotiations. There is what is called in British Columbia the Treaty Negotiation Advisory Committee, which is made up of a number of interest- and stakeholder-representative agencies for the province, and whose aim is to provide advice to the federal and provincial ministers with respect to treaty negotiations in British Columbia.

We also had the Kitimat-Skeena Regional Advisory Committee, which we call ARAC, the aboriginal advisory committee. It's made up of a broad range of community, local government, wildlife, fisheries, business, resource sector, trade union, and other groups. We met with that group on a regular basis in Terrace, and in some cases we met with them in Prince Rupert.

We had what was called the Nisga'a Fisheries Committee. It was made up of province-wide and local commercial fishing interests—the Prince Rupert trollers, gill-netters, processors, unions, and the Terrace sports-fishing interests. Again, we had regular and ongoing meetings with them, not only in terms of the treaty negotiations in general, but more specifically, we dealt with them on the provisions of the fish chapter and we consulted with them on a regular basis as that was being done.

We also have the Nisga'a Forest Advisory Committee, which is made up of the interests of people in the forest industry, the trade unions, and so on.

We had the Nass Valley Residents Association, which was made up of the existing private-property owners on the Nisga'a lands.

We had the Kitimat-Stikine Treaty Advisory Committee, which was made up of local and municipal governments, and indeed, a representative of that committee sat as a member of the provincial team.

We also met and had involved directly third-party interests—B.C. Hydro and B.C. Tel.

There was the standing committee.... I'm getting the high sign from Madam Chair—

The Chair: This is very interesting.

Mr. Tom Molloy: —but there were a great number of consultations. It would take me considerable time in order to—

The Chair: And in interests of being fair in our time, and if other members wish to have that....

Mr. Robert Nault: Madam Chair, we would be very pleased to submit the list of all the meetings that took place. We do have that list. We don't have it with us today, but we can certainly submit it to the committee.

The Chair: You certainly can table it, and I would instruct the clerk to circulate it amongst all members of the committee. This is the list of all the consultations that you're referring to.

Mr. Robert Nault: Yes.

The Chair: Certainly. That would be very acceptable and certainly welcome.

[Translation]

Mr. Fournier, do you wish to ask any questions?

Mr. Ghislain Fournier (Manicouagan, BQ): Mr. Minister, like my colleague, I would like to congratulate you on your appointment. Rest assured that the Bloc Québécois will always cooperate when there are bills, regulations and agreements that are in the interest of the population.

• 1630

Mr. Scott of the Reform Party touched upon the question that I would like to ask, which concerns your certainty that there will no longer be any conflicts. In your brief, you stated:

This is a full and final settlement of Nisga'a Aboriginal rights and title.

I would point out that this treaty is a full and final settlement of Nisga'a Aboriginal rights and title.

You added that this is a “key element” and you stated that you were convinced, and that that certainty is essential.

I would like to know what you are basing yourself on when you make such a statement. This is, after all, quite an assertion. Having negotiated collective agreements, I know that there is always room for interpretation and disagreement in a text. I read the Agreement quickly and I'm going to read it in its entirety. At any rate, apparently citizens are going to be able to seek redress from the courts. As Mr. Scott mentioned, we have not always had a great deal of success in the past when matters have gone to court.

I would like you to provide me with some reassurance with respect to this certainty that you have and this somewhat final Agreement which could buy peace between the two nations, namely, the people of Canada, the whites, and the Aboriginal people.

[English]

Mr. Robert Nault: Madam Chair, I think the best way to deal with the member's question is to look at the agreement on page 20. On page 20, if you look at the full and final settlement, which is paragraph 22, it states:

This Agreement constitutes the full and final settlement in respect of the aboriginal rights, including aboriginal title, in Canada of the Nisga'a Nation.

And then it goes on under paragraph 23, which is Nisga'a section 35 rights, to say:

This Agreement exhaustively sets out Nisga'a section 35 rights, the geographic extent of those rights, and the limitations to those rights, to which the Parties have agreed, and those rights are:

a. the aboriginal rights, including aboriginal title, as modified by this Agreement, in Canada of the Nisga'a Nation and its people in and to Nisga'a Lands and other lands and resources in Canada;

b. the jurisdictions, authorities, and rights of Nisga'a Government; and

c. the other Nisga'a section 35 rights.

And if you want to carry on to the other sections on pages 20 and 21, it will verify, as we have continued to say, that this will bring certainty not only to our relationship with Nisga'a people, which is a win-win for Canada, but also certainty for non-native people who are wanting to develop that particular part of the province, who want to make investments.

I've had conversations with all the major forestry companies, who I am very aware of because I come from a region that is forestry and mining based, and those two industries have said they want the government to get on with getting certainty, and agreements like this one, with aboriginal people, so that investors won't be reluctant to invest in that particular part of the country because of the uncertainty of land claims. And this is important for native and non-native people. That's why I continue to wonder why people are not supportive of an agreement like this, when in fact it does very clearly state that the Nisga'a people have accepted as one of the partners at the negotiating table the certainty that the member has asked me about.

The Chair: Thank you.

Mr. O'Reilly, please.

Mr. John O'Reilly (Haliburton—Victoria—Brock, Lib.): Thank you very much, Madam Chair, and thank you, Minister Nault, for appearing before us.

I want to get to Gathering Strength, the document that preceded this, and now the Nisga'a agreement, which I have spent a lot of hours reading. I'm not a lawyer, so I don't want to ask you too much about it, but I was and still am a real estate broker, so I understand land deals.

• 1635

My problem is the analysis of the opposition. I recognize that it is the right of the opposition to oppose, but here we are at a love-in except for one party, where some legitimate questions are being asked and yet one party picks us apart.

When you talk about myths, I'm trying to find out why the opposition is so adamant. What is your take on the kind of cloak of a secret agenda somewhere that seems to exist? Why are they insisting on a trip to British Columbia, which, by the way, I support? Having been a ski bum or a ski patroller, as I guess they call them now in British Columbia, I have a great love for the province.

I don't question the agreement. As I said, I've read it and I agree with most of the analysis of it. But the Reform Party will do everything to oppose it and delay it. I'm trying to find what that advantage or disadvantage is and what the agenda is in your mind, Mr. Minister.

I realize this is strictly a political question, but it seems to be the only thing, the only cloud that hangs there. Mr. Nault, you said you were anxious to get into that debate, so I want to open that up for you.

Mr. Robert Nault: As you know, I don't profess to speak for the Reform Party, so I won't at this meeting this afternoon. I expect that during the debate members of that party will relate to us what their policy is, as it relates to aboriginal people and the rights that exist that the courts have started to define over the last number of years.

As I understand it, there's very little argument by lawyers, judges, and constitutional experts that aboriginal rights exist. So setting that aside for a minute, the debate will have to be on how we manage to meet our obligations, morally and legally, to the government's responsibilities in dealing with those rights.

As you know, I took the unique opportunity to submit to members of Parliament the facts about the Nisga'a treaty, in order to deal with the opposition's summer activities, when they put out a number of suggestions to the Canadian public, particularly in British Columbia. They didn't do it across the country; they just did it in British Columbia.

I've started to relate to members of Parliament in question period. Unfortunately they've stopped asking me questions lately, which disappoints me. I hope they get back into it because I would like to respond to some of the suggestions made.

For example, in this householder that was put out by the opposition they said:

No private property rights for Nisga'a people exist. Property is owned communally on reserves, so when marriages break down, it is aboriginal women who are most often out on the street.

In fact, the Nisga'a treaty will take the Nisga'a out of the Indian Act. For the first time the Nisga'a government will have a choice to create a land ownership system, where Nisga'a individuals will be able to own parcels of land like other individuals in Canada. So that's one issue that Canadians may have a concern about. We need to have people explain to us why they would say that, when the agreement doesn't say that at all.

The other one they've brought forward to me is that fewer rights and freedoms for the Nisga'a people will exist under this treaty, when in fact the Charter of Rights and Freedoms and our Constitution apply. I don't understand how those statements can be made in householders to Canadians.

I have a whole list here of what we call facts of the treaty itself. I would like to table them because I think it's important that this government set out, for the record, what we believe the treaty says.

• 1640

In the debate we're going to have in British Columbia I look forward to watching very closely the members on the government side and the members on the opposition side who support aboriginal people and their legitimate aspirations through this treaty. It's important for Canadians to know and it's important for aboriginal people to know how the opposition's potential policy would be fleshed out if they were to be the Government of Canada.

We as parliamentarians have an obligation to tell Canadians where we would like to take them if we were the government. I'm sitting here telling you where this government is going and where it would like to go, but I'm not in view of where the opposition would like to go at this point if they were fortunate enough to have Canadians put them in office to govern us.

So I hope that answers the question, but I can't get into too many specifics, Madam Chair. Not being a member of that party, I don't really have the answer to the question specifically. I hope they will articulate it during the number of weeks and months ahead of us in this debate.

The Chair: Thank you. Would you please table with the clerk the documents and then they will be copied and distributed to all parties.

It is the NDP's turn right now. I'm going to make it very clear that all members have to be signed in. The NDP was trying to have Mr. Robinson signed in. I will go to Mr. Keddy for this round and then come back to the NDP after having skipped over them. This gives fair warning to the members of Parliament that they have to sign in through their parties and back out or in again if they wish. Thank you very much.

Mr. Keddy.

Mr. Gerald Keddy (South Shore, PC): Thank you, Madam Chair.

As Ghislain has related, I would also like to welcome the minister and congratulate him on his new term in office. I expect it will be exciting and interesting in the future.

The basis of the Nisga'a treaty is something the majority of parliamentarians support. However, some questions need to be asked and many of them have been raised. They've been answered in a very clear and concise manner to just about everyone's agreement.

I have some specific questions, not regarding the principle or the inherent right or anything like that in this treaty, but regarding the issue of costs. One of them is the estimated cost of the road in the Nass Valley. It's estimated at $40 million. Does the government feel they'll be able to stay within the parameters of that estimate?

And the other question is on the up to $35 million per year that may be paid to the Nisga'a that could be interpreted as possibly being paid in perpetuity.

I'd like the minister's answer on those two issues.

Mr. Robert Nault: On the first question, related to the highway, that's the provincial government's responsibility. So the province will in fact be improving the highway for all the citizens of the Nass Valley, obviously not just the Nisga'a people, but all those in that particular area. And I commend the province for doing that. Coming from a region with very few roads, I can understand the need to do this.

On the issue of costs, I wouldn't mind if Mr. Molloy gave you a complete breakdown of the cash itself and the intricacies of the agreement, because there has been in the media a continued suggestion that the total cost is about half a billion dollars. Certainly if you want to argue as it relates to land values and things like that...because there was an exchange in the agreement of some 2,000 hectares. Nonetheless, it's very important that we understand the financial implications of this agreement. So I give it to Tom to put on the record for you.

Mr. Tom Molloy: Thank you.

The capital transfer that the Nisga'a will receive, which is paid out over a period of 15 years, is $196.1 million. That amount has been adjusted from the final agreement in accordance with the terms of the agreement.

• 1645

For funding to increase Nisga'a participation in the commercial fishery through the purchase of vessels and licenses in the open market, the treaty provides for $11.8 million.

Transition training and other one-time implementation costs or funding paid over a period of five years represent $40.6 million.

The forest revenues amount, which is estimated, provided as compensation to the Nisga'a for revenues that will be accruing to British Columbia for forest activities on Nisga'a lands during the transition period set out in the agreement is $4.5 million.

So the total payments that will be going to the Nisga'a are $253 million.

There are other costs related to the treaty. Canada's contributing to the Lisims Fisheries Conservation Trust an amount of $10.3 million. The Nisga'a are putting up $3.1 million. And that fund, of course, will benefit more than just the Nisga'a.

Canada's contribution to British Columbia to assist those who may have been affected by the final agreement is $3.2 million.

The cost of surveying the lands is $3.1 million.

The purchase of third party interests is estimated at $30 million.

And then there was the highway that was mentioned for an amount of $41.4 million.

The Province of British Columbia has ascribed some values to the Nisga'a lands and fee simple parcels that they're receiving of $108.6 million. The province also estimated forgone forest revenues to the province of $37.5 million.

So the total one-time cost of the final agreement that I've outlined is $487.1 million, and Canada's share of that cost is $255 million.

The Chair: Thank you. It's now Mr. St-Julien's round.

[Translation]

Mr. Guy St-Julien (Abitibi—Baie-James—Nunavik, Lib.): The Inuit of Nunavik, the Cree of James Bay and the Algonquins of Abitibi congratulate you on your appointment, as I do too. Certain political parties are spreading a rumour around. They're saying that the Nisga'a Treaty is creating a third level of government that has no constitutional validity. My question deals with this issue. First of all, is the Canadian Constitution being upheld and are the Canadian Charter of Rights and Freedoms, the Criminal Code of Canada and the provincial and federal laws going to apply to the Nisga'as?

[English]

Mr. Robert Nault: Madam Chair, I perceive the debate when people talk about a third order of government as more of a political terminology than really one of substance as it relates to the treaty itself.

The treaty, of course, as you know and as you heard from me and Mr. Molloy over and over again, suggests very strongly in very precise wording that the Constitution of Canada applies, that the Charter of Rights and Freedoms applies, that provincial laws apply, and of course that the Criminal Code applies.

As it relates to land management, as I said in my opening remarks, it is so similar to municipalities that it certainly can't be construed as being provincial or federal types of jurisdiction. The environmental laws will apply, unless the Nisga'a decide to make their environmental standards more stringent than our own, which wouldn't surprise me, because aboriginal people have been known in the past to be our environmentalists and our conscience as it relates to our environment.

So for the sake of this table, I don't know where anyone can draw the conclusion that we're creating a third order of government. In fact, what we're creating, of course, is an opportunity for local government that is very similar to municipalities, but based on the understanding that aboriginal people have rights under section 35 of our Constitution.

• 1650

As you know, Madam Chair, self-government and the inherent right policy of this government have also been recognized by us to be part of the Constitution, section 35. So when we relate to this treaty and the next ones we will have—as I mentioned before, I am looking forward to many more—they will be based on section 35 of the Constitution, which does not suggest another order of government; it suggests a relationship based on our treaties, treaties that were signed, as you know, many years ago—and for those that weren't, the modern-day treaties that we will sign.

The Chair: Thank you.

Ms. Hardy, would you like to take this time now?

Ms. Louise Hardy: We would like a couple of minutes.

The Chair: Then I will go to the opposition and Mr. Scott.

Mr. Mike Scott: Thank you.

Mr. Nault, it's interesting that what's going on here today is nothing more than the four other parties in the House slagging the Reform Party for asking some serious questions about this agreement, but I'll move on from there.

In your characterization of the serious questions we were asking about the self-government provisions in this treaty, the application of the charter, the potential provision for taxation without representation, you were aware, of course, that much, if not most, of the information we are basing our questions on is coming from people like: Mel Smith, who is a long-time constitutional adviser to the B.C. provincial government; Gordon Gibson, who is the former leader of the B.C. Liberal Party, a noted writer and columnist; Gordon Campbell, who is the current leader of the B.C. Liberal opposition party; Andrew Coyne, who is a pre-eminent columnist recognized across Canada; and Tom Flanagan, who is a noted author and academic.

You would know, Mr. Minister, that much of the information on which we are basing our questions to you today is coming from these people. So I would have to assume that in challenging the Reform Party, in characterizing our questions and our concerns as myths, you are putting these people in the same category as the Reform Party. Am I correct in that assumption?

Mr. Robert Nault: Madam Chair, I can't speak for the ladies and the gentlemen, outside of the members of the opposition, who have opposition to this. I'm looking forward to their discussions with the committee as to where they place their arguments as it relates to the Constitution and the rule of law. That certainly is the intention of having these meetings and these hearings.

But I certainly wouldn't want Mr. Scott to get offended because I disagree with him. I fundamentally and philosophically totally disagree with the Reform Party, Madam Chair, and I'm not afraid to say it in front of all Canadians. I have have done it so many times that they would think I've lost my edge as a member of Parliament if I didn't do it. That certainly is what we're suggesting here, and I'm certainly not going to go much further with this conversation in which he is suggesting that somehow we're belittling the Reform Party.

It's not for me to decide whether the arguments being made have merit. It's for the Canadian public to decide. That's what these hearings are all about. I look forward to that debate, because that's really what we're trying to have here, Madam Chair. I've said that before and I'll say it again.

Certainly Mr. Scott and the Reform Party can have their views. Mr. Gibson can have his views. Rafe Mair can have his views.

That being said, I asked a very simple question of the Reform Party. I made a request. Before this debate is over, I'd like to know what their party's policies would be in regard to aboriginal people if Reform were given the opportunity to govern this country. That's what this debate is about. It's not about the Nisga'a people.

The Nisga'a people have entered into negotiations in good faith and have come to the table with the province and the federal government. This agreement now stands, so that's not what the debate is about. The debate is about whether this particular party believes that aboriginal people have rights based on aboriginal title and based on treaty.

The Chair: You have one and a half minutes left, Mr. Scott.

• 1655

Mr. Mike Scott: I just want to reiterate, Mr. Nault, that in characterizing the Reform Party's concerns as myths, misunderstandings, and mischaracterizations, which you have done in your presentation to this committee today, you are in fact also calling into question the writings, the concerns, the utterances of many prominent Canadians, including many prominent British Columbians, such as the current leader of the B.C. Liberal opposition party; the former leader of the B.C. Liberal Party, noted writer and columnist Gordon Gibson; and Mel Smith, a long-time constitutional adviser to the B.C. provincial government and in fact someone who was there representing British Columbia when the Constitution was repatriated. Are you aware that this is in fact the message you are sending to British Columbia when you discount Reform's concerns as myths and misrepresentations?

Mr. Robert Nault: Madam Chair, I'm sure the member, who seems to be so offended that I have a difference of opinion with some British Columbians, will also know that there will be many British Columbians who will disagree with him and his party when you are in British Columbia as a committee. I don't think he should be overly offended by that. That's the objective of this discussion that we're having.

He may know that the 25 first nations that he represents are extremely offended by his position that aboriginal people do not seem to have rights, even though he's their representative in the House of Commons. So if he wants to have this debate, I'm not here to feel uncomfortable. Yes, I do disagree with Mr. Gibson and I do disagree with Mr. Campbell and with a number of others, and I'm very willing to say it in this room or anywhere else across the country.

The Chair: Mr. DeVillers, followed by Mr. Robinson.

Mr. Paul DeVillers (Simcoe North, Lib.): Thank you, Madam Chair. My concerns were along the application of the charter and the matrimonial property rights, and I think they've been rather well addressed, so I'll pass to my colleague.

The Chair: Okay, then the next person on the government side is Mr. Grose, for five minutes.

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

First of all, I would like to say that I consider it a real privilege to be a member of this committee while we are attempting to correct some of the wrongdoings of and possible neglect by our ancestors. I think it's an opportunity we cannot lose.

With my long experience on the public accounts committee, of course, my first question was going to be where the money is. However, Mr. Keddy has already asked that question, and Mr. Molloy answered it very well. We now know how much it's going to cost. I'm always worried that there will be, somewhere in any bill, a bottomless pit for my taxpayers, but obviously this is not the case.

Let's go to something else, because I'm not too clear on women's rights. We said that if the Nisga'a decided to change from communal property rights to individual property rights, they could do so. Supposing that they don't decide to do this. Where does that leave their women under our Constitution and under provincial law as far as property rights are concerned?

Mr. Robert Nault: The long and the short of it is that it has already changed, that this is now under fee simple. It's not under the Indian Act any more, so property rights will have to exist simply because the treaty signals that this is the case.

Maybe I'll let Mr. Molloy give you the specifics of it, but the fact remains that under the Family Relations Act, the abilities for women, as you had quickly mentioned.... That is also one of the myths of the opposition: that women's rights will not be protected, and that's obviously including the Charter of Rights and Freedoms.

I'm really interested in this whole issue that the leader of the Reform Party brought up in the House of Commons, that somehow, because aboriginal people have a tendency to believe in the collectivity—which is very different from the beliefs of non-natives—it is a disgusting situation to allow to happen; it's almost communism, and we shouldn't allow it in Canada, because collectivity is a bad thing.

• 1700

I'm offended by that, quite frankly, because what this basically suggests in the treaty is that the Lisims government will have the opportunity to define its government based on the needs and the culture of the Nisga'a people. So I just wanted you to know that if that means they decide they're going to have property rights a little bit different from what we perceive them to be and what Mr. O'Reilly may be used to, that doesn't necessarily make it a bad thing. It certainly would be to our benefit to watch and learn as they decide how best to run their government.

I wanted time to give you the specifics on the legal side of how the fee simple—which is different from the Indian Act, because we're outside of the Indian Act now—will relate to property rights.

The Chair: Mr. Molloy.

Mr. Tom Molloy: Thank you.

The title to the lands that the Nisga'a will own will be in the nature of fee simple title, which is very similar to the type of title other private landowners in British Columbia receive.

Many of the homes that exist on the present reserves, which will be ended under the treaty, are held by a creature of the Indian Act called a certificate of possession, which provides persons with the right to occupy the land and to have possession of it. Once the treaty comes into effect and the lands become fee simple, there is an obligation on the Nisga'a to provide new residential tenures to the people who hold certificates of possession so that the individuals will be receiving a form of tenure that will provide them with the right to use and occupy the property and the lands. That title or interest they receive is capable of being transferred through estates, gifting, or marriage breakdown. So there is an interest that is in fact going to be created for individual Nisga'a who presently have certificates of possession.

Mr. Ivan Grose: Thank you, Madam Chair.

The Chair: You still have a couple of seconds left, if you wish to use them.

Mr. Ivan Grose: I'll wait until the next round.

The Chair: Okay. Thank you.

We'll go to Mr. Robinson.

Mr. Svend J. Robinson (Burnaby—Douglas, NDP): Thank you, Madam Chair. I want to thank my colleague for yielding her time to me. I will be brief.

I want to congratulate the minister on his appointment to this important portfolio.

I have two questions, but before I ask my questions, I want to make a couple of brief comments. I think I'm the only member of this committee who almost 20 years ago was a member of the committee that actually drafted the Constitution of Canada, in particular, section 35 of the Charter of Rights. So I have some recollection of that history, and I certainly recall the representatives of Nisga'a appearing before that committee at that time.

I'm here also as a British Columbia member of Parliament. As I look around the table, I see that, with the exception of the Reform Party, there are no other British Columbia members of Parliament at this table. I'm here because I think it's important that Canadians understand that the voices of the Reform Party are not the only voices from British Columbia on this issue and that indeed there are many British Columbians who strongly support this treaty.

I'm also a member of this committee who has met with the leadership of the Nisga'a people, and frankly I'm appalled that the member of Parliament representing that area, Skeena, has for at least five years not met once with the leadership of the Nisga'a people. It is absolutely unbelievable that should be the case, in my view.

I finally want to say—and if he has a different view—

Mr. Mike Scott: Madam Chair, that is simply not correct. I object to the member coming in here with those kinds of comments—

Mr. Svend Robinson: —the member can certainly set the record—

The Chair: Order, Mr. Scott. You are out of order.

Mr. Mike Scott: So is he.

Mr. Svend Robinson: The member can certainly set the record straight, and I welcome him suggesting when he has met with the leadership in the last five years.

The other point I want to make before asking my two questions is this: one of the most offensive and perverse distortions of history I've heard was a suggestion by a Reform Party member of Parliament, the member for Esquimalt—Juan de Fuca, that the Nisga'a treaty was akin to apartheid. The reality is that apartheid to a significant extent was based on the reserve system in the Indian Act, which this treaty is getting rid of. So let us be clear about history. To suggest that this is akin to apartheid is not only offensive but historically outrageous.

I have two questions.

The Chair: You have five minutes.

Mr. Svend Robinson: The first question is with regard to the issue of taxation without representation. One of the misrepresentations that has been spread by the Reform Party is that somehow this treaty allows for taxation without representation. I wonder if the minister could clarify this point.

• 1705

As I understand it, the treaty allows for the possibility of the federal or provincial governments coming to an agreement with the Nisga'a people to allow them to tax non-Nisga'a. But certainly the British Columbia government has made it very clear that such an agreement would only be arrived at if indeed there were to be both voting rights and political representation of non-Nisga'a. In other words, if they're going to be taxed, they're going to have representation and voting rights. I assume that would be the position of the Government of Canada as well before there were any taxation of non-Nisga'a. I want to ask the minister if he could clarify that.

Secondly, on the point Mr. Scott raised of jurisdiction in certain areas, he raised the issue of supremacy. I just want to get clarification. As I understand it, the issue is one of exclusive jurisdiction in certain areas. For example, in language, if the Nisga'a people adopted legislation with regard to Nisga'a language that conflicted with provincial or federal legislation, the Nisga'a legislation would take priority. But perhaps Mr. Molloy or the minister could clarify that. As I understand it, that doesn't in any way remove the powers of the court to look at whether or not the law is within the jurisdiction of the Nisga'a people or whether or not it is in breach of the Charter of Rights.

I wonder if I could get clarification on those two points, which have been the subject of such misrepresentation by the Reform Party in British Columbia.

The Chair: Minister Nault, please.

Mr. Robert Nault: Madam Chair, that's a very important question that's being asked by the member, on taxation without representation. It has been at least my understanding that this government has signalled and made clear, as has the British Columbia government, that we will not enter into administrative agreements as they relate to tax without the assurances that there will be representation of the non-native community members who might be affected by them. That has been our commitment, and it's a similar commitment of the British Columbia government. We make it very openly and publicly, because we think, as do other Canadians, it's important to have representation and taxation cannot occur without that representation. So I give that undertaking.

I'll turn it over to Mr. Molloy to give you the specifics about the issues that relate to language and culture.

Mr. Tom Molloy: Thank you.

Again I just want to make it clear that it's not exclusive law-making authority; it's concurrent. So it doesn't take away the ability of either Canada or British Columbia to pass laws. It's a concurrent jurisdiction.

The areas where the Nisga'a law would prevail in the event of a conflict or inconsistency deal with matters that are internal or integral to Nisga'a culture, Nisga'a language, and the assets they are receiving from the treaty. In the other area where their laws would prevail in the event of an inconsistency or conflict, they must make laws that either meet or beat provincial standards. I agree as well that the courts would have a role in ensuring that the Nisga'a laws are within their jurisdiction.

Mr. Svend Robinson: In the final—

The Chair: Mr. Robinson, your time is up for now, but you'll have another round after the Bloc.

Ms. Karetak-Lindell, please.

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

I think we're hearing about a lot of bad things we think are going to happen to the people of British Columbia, and I don't think we've really touched on what will be the benefits for the whole province from this agreement. It's always sad that we only look at the very few possible incidents of something bad happening from an agreement the majority of the people have voted for. I fail to see why we don't accept the wish of the people who voted in majority for this agreement. To get the other side of the story, what benefits do we see coming out of the agreement for the whole province of British Columbia? You don't have to convince me what the benefits are for the Nisga'a people. Perhaps we could put it into the different perspective of what we hope to see as benefiting the whole province of British Columbia.

The Chair: Minister Nault.

• 1710

Mr. Robert Nault: Madam Chair, there's always an interest, and one of the reasons we have entered into negotiations with the Nisga'a and with a number of other aboriginal groups across the country is not only our legal obligation and our moral obligation, but obviously our own selfish interests.

Our self-interest relates to bringing certainty to our economy as native and non-native people. As I mentioned to you earlier, one of the things that has been told to me over and over again by the forestry and mining companies that I'm very familiar with is that this uncertainty that relates to aboriginal rights and land claim settlements is costing the economy dearly.

In British Columbia they estimate that once we have certainty in British Columbia, it will increase the investment through a better investment climate by up to $400 million in investment alone, which articulates to somewhere around 17,000 new jobs—just to bring certainty to this particular question of land tenure. So that's on a very selfish note.

But the interest of the Government of Canada is not only economic, it's social. It's in the social policies somehow that the rubber meets the road. We have communities of course who have had social problems for many, many years. I think all of us around this room would agree that mistakes have been made by governments of the past—mistakes of believing that somehow non-natives had the answer, that we could dictate to aboriginal people what they should think and what they should believe and what their rights should be.

My understanding is that the thinking of Canadians and governments has done a complete 360-degree turn in the last number of years. That thinking now suggests it's best to let aboriginal people define for themselves how they want their economy to work and how they want their lives to be run. That's really what this deal does. It gives aboriginal people the ability to decide their own destiny; that's the intent of our new policy.

Madam Chair, it's hoped that by doing that and of course giving them economic tools like land and financial resources that over time—not tomorrow, not next year, but over time—we will start to see the benefits in aboriginal communities of not 60% or 70% unemployment, but unemployment the same as we struggle with in the non-native world. That's the intent of treaty-making and the intent of certainty.

I just wanted to let you know there has been some analysis done of this. It's believed that once the resolution of treaty negotiations in British Columbia occurs, the provincial economy will grow by more than 1%. That's described and considered to be a very conservative estimate. One percent of GDP in British Columbia is significant.

I think members should look at that very seriously before they decide not to support this treaty and the Nisga'a agreement.

The Chair: Thank you.

[Translation]

Do you have any questions, Mr. Bachand?

Mr. Claude Bachand: I am not going to ask you to provide me with a clear and precise definition of people or nation. We have often referred to the Aboriginal people as an “Aboriginal people” or as an “Aboriginal nation”. When we talk about a people or a nation, there are usually rights that flow from this status. Naturally, these rights can be negotiated in good faith between peoples, or they can be imposed by courts. Unfortunately, in the case of the Aboriginal people, very often it is the courts that have had to define these rights. Moreover, I have often criticized the government for its lack of leadership in dealing with the political issue. It is the courts that have defined how to interpret the right of a people or nation.

• 1715

This time, I must salute the fact that, politically speaking, we are almost there. Once this is signed by the federal government, we will have the definition of an Aboriginal people which will apply to the Nisga'as through three levels of government: the Nisga'a government, the Government of British Columbia and the Government of Canada.

Very substantial rights flow from this Agreement, and one in particular is of interest to me. You will understand that I'm very interested in the right to Nisga'a citizenship, as well as the right that the Nisga'a have been given to draft their own constitution.

Is this the first time in Canada that a people has signed an agreement giving it authority over its constitution and citizenship, an extremely important issue and one which gets away from the concept of equality? I know that my friends in the Reform Party often talk about the concept of equality. One can be equal, while at the same time having a distinct status. I believe that this the first time that we have recognized the distinct status of one of the great Aboriginal peoples of Canada, the Nisga'as.

Could you tell us whether this is the first time, with respect to Aboriginal peoples or in general terms, that the Canadian federation has gone as far as it has in acknowledging distinct status?

[English]

The Chair: Mr. Nault.

Mr. Robert Nault: I'm quite sure I know where the member's question is leading, and I want him to know that this does not imply a sovereign state. What this basically spells out.... The treaty is very specific about what “Nisga'a Nation” and “Nisga'a citizens” mean, and when you think about the fact that we're still within the legal framework of Canada, we're not making constitutional amendments, it cannot be considered or implied that we're talking about sovereign states here. But I also want the members to know that we consider the Nisga'a government authorities to be those of local aboriginal governments within Canada. They're domestic governments; they're not sovereign.

I hope I'm being very clear to the member that even though aboriginal people will have a right to create a constitution that deals with local government, that deals with language, culture, and tradition, which are what define the different aboriginal groups across Canada, it would not be considered...because of course then we would be outside of our Constitution, and we would have to agree with the opposition that a constitutional amendment would be necessary. And we don't agree with that assumption.

[Translation]

Mr. Claude Bachand: If I understand you correctly, you're saying that this is a constitution within the federal Constitution and that this is citizenship within the federal Constitution.

There's one question that you didn't answer. As far as the Aboriginal issue is concerned, is this the first time that we have gone as far in recognizing distinct status for an Aboriginal nation?

[English]

Mr. Robert Nault: Well, I wouldn't say that, because this is the 14th self-government and/or negotiation we've had in modern times, starting of course, as you know, with the Cree-Naskapi, which in 1976, if I recall, defined the relationship of the aboriginal people in northern Quebec to the province—

[Translation]

Mr. Guy St-Julien: In 1975

Mr. Robert Nault: In 1975.

[English]

It defined the relationship of the native people in that particular part of the country with the province and the federal government.

So keep in mind that in order to be sovereign, Madam Chair, they have to have authorities that relate to defence, international trade, banking, telecommunications, and matters of that significance, and this, as you know, does not relate to those particular items. So sovereignty is not the issue. It's local government, to make sure that the traditions, cultures, and language of aboriginal people are maintained. That's what we're talking about here.

• 1720

The Chair: Thank you, Minister Nault. I notice it's about 20 minutes past the time you were supposed to be leaving. I'd like to thank you, unless you are postponing your other engagements at this point.

Mr. Robert Nault: Well, I've been late for meetings before, and I will be late again today.

I'd like to let the officials stay to continue the dialogue and discussion, in order to clarify some of the points members might have. If not, Madam Chair, I always look forward to coming before the committee to further the debate. If it's your wish, I'd be willing to consider coming back later, if there's more need to clarify the government's position as to what our policies are and what the intent of this relationship and this treaty is to the long-term abilities of Canada and native people to advance our new relationship—our modern relationship, our partnership.

I want to take this opportunity to wish you all the very best as you go to British Columbia. I want to say that openly because to me this is the most important debate we'll have in this Parliament. With this debate we'll begin the important work of the other tables we're at with first nations people. How this debate turns out will have a significant impact on where the government will go, in recognition of those aboriginal rights and treaty rights.

I am very interested in Canadians' views, and I hope the witness list will reflect Canadians and not certain people who have already decided they have a particular bent on this relationship we have with the Nisga'a people.

Having said that, enjoy yourselves in British Columbia. I'm sure it's going to be a great time. It's a beautiful province. I'm going there for the third time already as a new minister. I hope it signals to the committee and to British Columbians the importance I place on the B.C. treaty process, and the importance I place and the government places on final negotiations with aboriginal people, so the economy and the certainty we're looking for will be there for both aboriginal and non-aboriginal people.

Thank you for allowing me to come to speak to you today.

The Chair: Thank you, Minister Nault.

I have a list. Mr. St-Julien, you can question the officials if you would like to take your time now.

[Translation]

Mr. Guy St-Julien: Madam Chair, we're talking about Canadian taxpayers' money. According to the Agreement, will the Nisga'a government be accountable? This is important. Are they going to hold democratic elections, are they going to have guidelines dealing with conflicts of interest and are they going to use accounting methods? Is the Auditor General of Canada going to audit Canadian taxpayer money that will be invested in the Nisga'a community?

In conclusion, once the Agreement is signed, will it be possible to take legal action against the Nisga'a government and against any municipal government given that they will be accountable for their decisions?

[English]

Mr. Tom Molloy: Thank you.

The agreement provides that the Nisga'a must have certain things in their constitution that governs them. They're required to have an open, accountable, and democratic government. Their constitution must provide for elections and votes by all Nisga'a citizens. The only way of excluding is on the basis of age.

They must hold elections at least every five years. They must put into place a financial accountability mechanism, similar to that of other public governments in Canada. They are required to have conflict of interest guidelines, similar to public governments in Canada.

• 1725

In addition, under the fiscal financing agreement, which is outside the treaty but relates to the provision of money for programs and services, they are required to provide audited financial statements. The Auditor General still has a role to play in accountability for the expenditures of those funds. In addition, a tripartite committee has been set up involving Nisga'a, the province, and Canada to oversee any problems that may arise.

[Translation]

Mr. Guy St-Julien: According to the Agreement, will the Nisga'as have to pay income tax, municipal tax and school tax?

[English]

Mr. Tom Molloy: As the minister indicated earlier on, they have the ability to tax Nisga'a citizens living on Nisga'a lands. So to the extent that they want to put into place taxing regimes with respect to property taxes, they will have that ability, but it's restricted to their land and only to Nisga'a citizens.

[Translation]

Mr. Guy St-Julien: Thank you.

[English]

The Chair: Mr. Robinson, and then I have Mr. Finlay and Mr. Keddy.

Mr. Svend Robinson: I want to follow up on a question I raised earlier. I indicated it was my understanding that one of the members of the committee, Mr. Scott, hadn't met with the leadership of the Nisga'a in the last five years. He stated that in fact he had. In fairness to Mr. Scott, in the time I have, I'd like to give him the opportunity to set the record straight and indicate when he has met with the leadership of the Nisga'a in the last five years.

The Chair: This is not a questioning of members, unless there's—

Mr. Svend Robinson: With the consent of the committee and certainly of Mr. Scott, I want to give him that opportunity.

The Chair: Mr. Scott, is this something you wish to do?

Mr. Mike Scott: I'm quite happy to respond.

The Chair: Do all members around the table agree to have Mr. Scott speak on this?

Some hon. members: Agreed.

The Chair: Are there any objections? Hearing none, Mr. Scott, you have one minute.

Mr. Mike Scott: Shortly after I was elected in 1993, I had occasion to meet with the Nisga'a leadership up in the Nass Valley, at their request. I indicated to them at that time that I would be trying to get public scrutiny on what was taking place in the land claim negotiations.

The Nisga'a leadership were trying to convince me to support the process that was in place already, which was a tripartite agreement negotiated between the province, the federal government, and the Nisga'a, whereby all the negotiations leading up to this agreement were taking place behind closed doors.

We reached a fundamental impasse at that point, because I believed, and I still believe to this day, that in order for treaties to enjoy public support, the negotiations must take place in the open.

I then embarked, along with my colleagues John Duncan, Dick Harris, and others, on a series of meetings across British Columbia to try to bring to the attention of the public what was taking place and to try to get at least some public scrutiny on this process and what was likely to come out of it.

The Nisga'a leadership in many cases were present at these meetings, and during the course of one of them in Terrace, Chief Joe Gosnell challenged me to a public debate, which took place in, I believe, either the fall of 1995 or the spring of 1996; it was in that timeframe. A two-hour debate took place in Terrace. It was televised and it was also carried on radio throughout northern B.C., not just in the riding I represent.

Is that it, Madam Chairman?

The Chair: I believe you've answered the question, and I would like to get back to the order of business. I think I've been quite lenient here.

Mr. Svend Robinson: I appreciate Mr. Scott clarifying that.

The Chair: In the interest of fairness, I felt that was allowable, with the permission of the committee.

Mr. Svend Robinson: In order to set the record straight, I felt it was important to do that, and I appreciate him setting the record straight that the last meeting he had with the leadership was in 1993.

The Chair: Do you have a question for the witness, Mr. Robinson?

Mr. Svend Robinson: My question was answered.

The Chair: I will go then to Mr. Finlay, please, for five minutes, and then Mr. Keddy for five minutes.

Mr. John Finlay: Thank you, Madam Chair. I don't think what I'm going to ask will take five minutes.

One of the complaints we hear often about aboriginal people across this country is that they don't pay taxes as the rest of us do. They don't pay GST, they don't pay income taxes, and so on. This taxation chapter, as I understand it, provides for the gradual phasing out of the Nisga'a citizens' exemption from paying taxes, including income taxes, which is given to them under section 87 of the Indian Act.

• 1730

I wonder whether you would tell me the rationale underlying these measures and why there are exemptions—although I think I could answer my own question—and why these exemptions are phased out over eight years and twelve years in this agreement.

The Chair: Mr. Molloy, would you be prepared to answer that one?

Mr. Tom Molloy: Thank you.

You're correct. The treaty provides that the Nisga'a will begin paying income tax twelve years after the effective date and will be paying transaction taxes—GST, PST—after eight years. The reason for the transition period was to enable the persons who would be affected by this to make the economic adjustment in going from a non-tax status to a tax status.

I think it's also important to clarify that I have seen a list produced that has suggested somehow or other the Nisga'a are not taxed in the same way as other citizens. There's a list of tax exemptions that continue to apply, or at least that's the allegation. The fact is that in terms of individuals they will fall under the federal and provincial income tax, sales tax, and GST.

There is outside the treaty a tax agreement, and it provides for a number of exemptions to the Nisga'a government. Those exemptions are no different from the exemptions other governments in Canada presently enjoy. The reason it's in an agreement is to allow adjustments if the Government of Canada changes its tax policies with respect to other governments.

So there is a list of exemptions, but they apply only to Nisga'a government. They basically treat the Nisga'a government as any other government is treated in Canada, be it municipal or provincial, under our tax laws.

Mr. John Finlay: Thank you very much.

The Chair: Do you have another question?

Mr. John Finlay: No, thank you, Madam Chair.

The Chair: Mr. Keddy, please.

Mr. Gerald Keddy: Thank you.

There are a couple of points I'm still not quite clear on. I think it's the job of this committee, certainly why we have the officials here, to try to get complete and utter clarification of all points, and certainly for the benefit of all Canadians to assess this treaty and to understand the details in it.

I'm still not completely clear on the annual payments, and I've checked through the treaty itself. I came here late, and I apologize, but I didn't bring my notes with me.

I want to be able to understand here. After the annual payments and following the final payment, is there going to continue to be an annual payment or a transfer of payment between governments, between the federal government or the B.C. government and the Nisga'a Nation?

Mr. Tom Molloy: Yes, there will be. The costs I outlined in answer to your earlier question represented the one-time costs as well as other related costs and some ascribed values to the treaty.

There are ongoing costs of government programs and services, which presently would total $32.7 million. They represent transfers with respect to health, social services, income assistance, education, local government, lands and resource management, and housing, and some additional capital to provide for upgrading of their infrastructure.

Mr. Gerald Keddy: There is also a schedule built into that where those payments would decrease, hopefully, given economic affluence of the Nisga'a Nation itself.

Mr. Tom Molloy: There is not a schedule, there is what is called a known source revenue agreement, which is an agreement outside the treaty. It is a document that recognizes the commitment of the Nisga'a, Canada, and British Columbia that the costs of government are a shared responsibility.

The known source revenue agreement provides the method by which revenues earned by the Nisga'a will be taken into account, and there would be a transfer from the Nisga'a to the governments for the costs of programs and services. As I say, it's a way of ensuring that it's a shared responsibility of the three parties to the agreement.

• 1735

Mr. Gerald Keddy: The minister spoke about fee simple property rights. In regard to the property rights, I don't know the exact legal term, but I suspect they're fee simple common property rights, which are different from fee-simple. There will be fee simple common rights, so it's fee simple held in common to all the Nisga'a people. Given those property rights, how do you buy, sell, or trade? How do you hand down to your heirs and descendants property you've lived on or used over time?

Mr. Tom Molloy: First of all, the title the Nisga'a will have after the final agreement is fee simple. As was mentioned earlier, the nature of the fee simple title that they will own will be virtually identical to fee simple title that is owned by other residents of British Columbia and indeed other residents of Canada where the fee simple process is in place.

Mr. Gerald Keddy: You can use it for collateral on a mortgage?

Mr. Tom Molloy: It's up to the Nisga'a to determine how those lands will be transferred or when they'll be transferred, and whether or not they'll be pledged as security. There's nothing in the agreement that prevents that. There is also provision that allows for the parcels of land that might be created in the future to be brought into the land title system in the same way as any other land parcel is brought into the system. It maintains the integrity of the British Columbia land registry system.

I mentioned that there is a certificate of possession that presently exists under the Indian Act. Because the Indian Act is being taken away or being removed from the Nisga'a, they are required to provide an equivalent interest in land to persons who presently hold such certificates.

Mr. Gerald Keddy: I have two more questions, Madam Chair. I must have a minute left.

The Chair: Actually, you don't, but we'll be able to take extra rounds.

Mr. Iftody, it's your round right now.

Mr. David Iftody (Provencher, Lib.): Thank you very much, Madam Chair. My question is to Mr. Molloy.

Throughout the debate on the Nisga'a bill, and I guess most recently, there has been some dispute about the actual cost of the agreement. I believe there were a number of reports in national newspapers, such as the National Post and others, about a consultant out of British Columbia who had pulled together a study for one of the members of Parliament for the Reform Party. It was widely publicized and seemed to over-exaggerate, in my view, the cost of the agreement. You stated to the committee earlier that the overall costs were about $478 million. This person, whom I don't know, estimated the cost at $1.3 billion.

From reading the press summaries of this report, most of those costs done by this particular person were based on differences in calculated land values in the transfer of the land. In questioning before this committee last year, I questioned the Auditor General about his estimates for lands such as these in the northern parts and hinterland of Canada, about what kind of methodology the Government of Canada was using, and whether the Auditor General was particularly comfortable with these kinds of things. In terms of the work of the Government of Canada, can you tell me what kind of methodology was used, and how we arrived at our assessment for those land values, Mr. Molloy?

Mr. Tom Molloy: The value of the land was a value that was ascribed by British Columbia. I wasn't involved in the review of the calculations, but I understand that people within the federal government were generally satisfied that they represented a fair value for those lands. But because these are provincial crown lands that are being transferred to the Nisga'a, this falls within the jurisdiction of British Columbia.

• 1740

Mr. David Iftody: Those are all my questions. Thank you.

The Chair: Mr. Scott, do you have any? Or Mr. Konrad? Go ahead.

Mr. Derrek Konrad (Prince Albert, Ref.): Thank you, Madam Chair.

Before I start, I just want to get one thing off my chest that's been on it since the opening statements, and that's that we sometimes characterize this as Indians versus white men. When I look over our caucus, I see other people from other cultures, other backgrounds, and I just wish we would get away from that in this committee and deal with the issues instead of characterizing things like that.

Now to get to my point here: Under “Judicial determinations in respect of validity”, which is found on page 19 in chapter 2, paragraph 19 states that if the Federal Court or the Supreme Court rules that provisions of the agreement are ruled invalid or unenforceable, the parties will make best efforts to amend the agreement or that part of the agreement will be severable, if I understand it correctly. I also understand that the Gitanyow and the Gitksan bands have lawsuits pending or in process against the government on account of the final agreement.

I have some questions in respect of that. First, what becomes of the lawsuits of the bands that are litigating, or of the actual land being transferred to the Nisga'a? In the case that they win, what is the fallback position of the government? A third question that I would like answered is whether this is being rushed through for the start of December in order to beat the judgments because at that point the land base will be constitutionally protected.

The Chair: Mr. Molloy.

Mr. Tom Molloy: First of all, with respect, paragraph 19 on page 19 does not relate to the issue involving the Gitanyow. It's an interpretive clause that is often put into commercial agreements or other agreements so that if, for whatever reason, the court were to determine that a provision was invalid or unenforceable, the whole agreement doesn't go down. It's to provide Canada, the Nisga'a, and British Columbia with certainty that if a clause is found by a court to be unenforceable, the rest of the treaty stands. As I say, it's a clause that is commonly found in commercial and other agreements.

An hon. member: I've never heard of that one.

Mr. Tom Molloy: With regard to the issue of other aboriginal peoples, if you refer to page 22, paragraphs 33 and 34, and 35 to some degree, first of all, this treaty is a treaty about the Nisga'a. It is not intended to deal with or affect or recognize or modify rights of any other aboriginal person or people—and that's included in paragraph 33. If a court is faced with interpreting this treaty in relation to some other first nation's rights, this treaty is not to be used in interpreting those rights.

If, however, this treaty does in fact adversely affect another aboriginal group's rights in some way, the courts are given some specific instructions. This is what we would anticipate the courts would do, that being that they would interpret the provisions of this agreement to ensure that this agreement and the other rights that may be found to be held by another first nation are accommodated. The court is directed to read the treaty down in order to accommodate those rights, so that the two rights could exist side by side.

• 1745

If, however, that can't be accommodated, then there is an agreement that we would return to the table to negotiate an intent to reach agreement on provisions for additional or replacement rights.

Mr. Derrek Konrad: Do I have any more time?

The Chair: One minute.

Mr. Derrek Konrad: I understood all of that, and I think I understood it before you answered it, but do you expect that to happen? What have you put in place to provide for the eventuality that it may happen?

Mr. Tom Molloy: I can't comment on the timetable of Parliament. It's up to Parliament to determine when—

The Chair: It is a hypothetical question.

Mr. Derrek Konrad: Sorry.

The Chair: I have on my list, for your information, Mr. Grose and Mr. Keddy. Mr. Bachand, you still have questions. So we'll go Mr. Grose, Mr. Bachand, Mr. St-Julien, Mr. Keddy.

Mr. Keddy, did you wish to go another round?

Mr. Gerald Keddy: Absolutely.

The Chair: Okay.

Mr. Gerald Keddy: I don't know how they got ahead of me, Madam Chair.

The Chair: It's called the order.

Mr. Grose, five minutes, please.

Mr. Ivan Grose: Thank you, Madam Chair.

I would have preferred to ask this question when the minister was here, but he obviously had other meetings to go to. What I'll try to do is frame the question so that you can give me your opinion, because it could be interpreted as a matter of policy.

There's been a lot of discussion about using this agreement as a pattern for other agreements. In your experience with this agreement, would it be practical to just impose this holus-bolus on another group that had different property problems, different heritage possibly? Or maybe we could cherry-pick the best parts of this agreement, which might or might not apply somewhere else. But to use this as a pattern for another agreement, would that be practical, in your experience?

The Chair: Is that John Watson?

Mr. Ivan Grose: Whoever is best equipped.

Mr. John Watson: Maybe I could provide some answer, because I am overseeing the other negotiations that are occurring in British Columbia.

The federal government's view is that the Nisga'a treaty is not a template for other agreements, that each set of circumstances of other first nations are quite unique. Those of you on the committee who have visited the Nass Valley will know that it's beautiful and a very separate geographic part of British Columbia, but we are also negotiating treaties in many parts of British Columbia that are adjacent to, and in fact in some cases within, urban municipalities and other areas. So the nature of the governance arrangements, for example, will be quite clear.

There are, however, many aspects of the treaty that do I think provide guidance to other treaties, in that Mr. Molloy, along with our other negotiators, is provided with a specific mandate from the government to ensure that there are specific aspects achieved, including the Charter of Rights of Freedoms, the application of the Criminal Code, and certainty in terms of clarification of the extent of the jurisdictional arrangements among the federal, provincial, and the aboriginal government.

There are many of those aspects of the Nisga'a treaty that probably do provide some guidance to what other treaties will look like. But we have clearly said that we do not see treaty negotiations as a cookie-cutter solution. We will consult extensively with third parties in the areas where treaties are being negotiated and we do have a network of regional advisory committees of interested third parties so that in all areas the unique circumstances that are at play, of both third parties and of the aboriginal groups themselves, will be taken into account.

Mr. Ivan Grose: Thank you, Mr. Watson.

Thank you, Madam Chair. That answers my question.

The Chair: Okay.

[Translation]

Mr. Bachand.

Mr. Claude Bachand: Madam Chair, it's unfortunate that the Minister has left, but when you're a minister, you have to be in many places. Earlier he provided us with his definition of sovereignty. I also have a definition of sovereignty and its attributes: the ability to raise taxes and income taxes, which the Nisga'as are going to be able to do; the ability to pass legislation, which the Nisga'as are going to be able to do; and, something which is very important, the ability to sign international treaties.

• 1750

I would like to hear your opinion on this, Mr. Molloy, because I know that you were a very active participant in the treaty negotiations. I am referring specifically to the international arrangements provisions, which are sections 115 and 116 of the agreement. I will give you time to find them because it is important that we look at them together. They are found on page 122 in English.

[English]

The Chair: Page 122 in the English version, the researcher tells me.

Mr. Claude Bachand: Page 122 in English.

[Translation]

I don't know what is said in English, because sometimes what is said in English is not at all what is said in French. The English version reads as follows:

115. Canada will consult with the Nisga'a Nation with respect to the formulation of Canada's positions in relation to international discussions or negotiations that may significantly affect fisheries resources referred to in this Agreement.

This is found in the chapter on fisheries. Further on, we read:

116. This Agreement will not affect or preclude participation of the Nisga'a Nation, Nisga'a Villages, Nisga'a Institutions, Nisga'a Corporations, or Nisga'a citizens in commissions or fisheries management advisory bodies.

Section 115 states that Canada must consult the Nisga'a Nation. I would imagine that this section refers to international treaties dealing with fish or salmon in particular. We have often heard it said, and we have even heard this from people from the Yukon, that the Americans could catch the fish higher up, in Alaska.

Could you explain the scope of this section and describe how the Nisga'as will now be able to have an impact on the Canadian Government's international policy on fisheries?

[English]

The Chair: Mr. Molloy.

Mr. Tom Molloy: Thank you.

First of all, I'd like to make a general comment that the general provisions of the treaty provide that all Nisga'a law-making authority is set out in the treaty. So if there isn't a specific provision or power to make laws, there is no authority within the Nisga'a government.

This paragraph deals only with consultation. I think it just reinforces the fact that Canada is the one that remains responsible for international discussions, in this case relating to fishery resources. This puts an obligation on Canada to consult with the Nisga'a with respect to the formulation of positions in international agreements. It would not be dissimilar to the policy that the Department of Fisheries and Oceans presently has to consult with groups that may be affected by international treaties, but it doesn't provide for any authority or role in those negotiations other than consultation with the department.

I think other treaties that Canada has negotiated in recent times contain similar provisions. And the fish chapter as well contains a specific clause that states that the Minister of Fisheries and Oceans retains his or her authority.

The Chair: Mr. Bachand, one minute.

[Translation]

Mr. Claude Bachand: I would like to have some additional information. You stated that this provision creates a formal obligation whereby the Canadian Government must consult the Nisga'a Nation with respect to international fishing treaties.

Accordingly, although you will have the last word, you do concede that the Nisga'a Nation may influence Canada's position with respect to international relations and treaties. This possibility exists. You must consult them, but when you do, they will respond with arguments, which may have an impact on Canada's position vis-à-vis its international relations.

[English]

Mr. Tom Molloy: I agree that it has the possibility of influencing the government's position at the negotiating table. However, it has the possibility that it doesn't provide a direct role. Obviously consultation when rights are being affected is very important, and it's an important provision, but I think it makes it absolutely clear that as in any negotiation, when we were negotiating treaties—and we've described how we dealt with advisory groups and how we also dealt with government departments, and we sought their advice—in the end we had to make a decision as to which way we would go. And that would be the same with regard to Canada's obligations in international treaties: they would consult with the Nisga'a, but the ultimate decision as to what direction an international agreement would go in would remain with Canada.

• 1755

[Translation]

Mr. Claude Bachand: Thank you.

The Chair: Mr. St-Julien.

Mr. Guy St-Julien: Madam Chair, my question is as follows. I'm looking at the map. I checked the map the other day and I saw that there were some islands. I would like you to talk about hunting and fishing, particularly commercial fishing. I have here an article which talks about fish processing plants. I would like you to talk about hunting and fishing in the region where the islands are located. There are some islands located in a big river. Does the Agreement say anything about the islands?

[English]

Mr. Tom Molloy: The hunting and fishing with respect to the river and islands are governed by the treaty.

Under the fish chapter, there are specific allocations that the Nisga'a receive with respect to salmon species. There is a requirement under the treaty that they provide a fish management plan with respect to their fishery. That plan is approved by the joint fishery management committee, and then it goes to the Minister of Fisheries and Oceans for approval or to be varied. The minister has authority to vary the plan. Once the plan is approved, the Nisga'a have the ability to make laws with respect to their fishery, providing that it is consistent with the overall plan that has been approved by the minister.

With respect to wildlife, there is a wildlife management area, which is described and outlined in the treaty. And again there are specific allocations with respect to certain species. The wildlife management system is not too dissimilar to the fish management regime, in that they are required to provide a wildlife management plan, which goes to a committee and ultimately to the responsible minister. Primarily responsibility for wildlife falls within the provincial jurisdiction. Again, the Nisga'a are able to make laws with respect to the management of their wildlife in accordance with the wildlife management plan. Their ability to make plans and to make laws is with respect only to their own harvest of either wildlife or fish.

The Chair: A small question, one minute.

[Translation]

Mr. Guy St-Julien: I have an important question. Will Nisga'a women be able to run for election?

[English]

Mr. Tom Molloy: Yes. First of all, the Charter of Rights and Freedoms applies, and there is a specific provision that says the rights apply equally to men and to women. There is no distinction in terms of who's eligible to run for office. It's all Nisga'a citizens, and the only manner of not running for office is based on age.

The Chair: Mr. Keddy, please. Five minutes.

Mr. Gerald Keddy: Thank you, Madam Chair.

I have one or two more questions. Maybe you can answer those questions and then I have another comment, but it's strictly a comment. One of them is on the salmon allocation for the Nisga'a on the Nass River. I believe 18% is the Nass River TAC, total allowable catch.

• 1800

Mr. Tom Molloy: The total salmon allocation is approximately 26%. That's in the treaty and also the fish agreement—

Mr. Gerald Keddy: And some commercial licences that are held at this time.

Mr. Tom Molloy: Those would not be included.

Mr. Gerald Keddy: Okay. When that was negotiated, it was also recognized that there are some other claims to salmon runs that are used in the Nass River, specifically by the Gitanyow. There are two other bands. I don't have the pronunciation of their names.

An hon. member: Tsimshian.

Mr. Gerald Keddy: Yes, thank you.

Mr. Tom Molloy: The current users of the fish stock along the Nass valley were taken into account in arriving at the percentage allocation that the Nisga'a received. It's my understanding, from working with the Department of Fisheries and Oceans with respect the Nisga'a allocation, that they believe there is sufficient allocation remaining in the river to accommodate all users, including future treaties.

Mr. Gerald Keddy: Were all the aboriginal users of the Nass River salmon, plus a commercial fishery over and above them, taken into consideration? Do you have the numbers on how you think that salmon TAC may be divided up?

Mr. Tom Molloy: I can look into whether or not they're available. I can't give you a commitment.

Mr. Gerald Keddy: Could you get those for the committee? Is that possible?

Mr. Tom Molloy: I will get back to the committee on whether or not it's possible to provide that information. If it is, I will undertake to provide it; if not, we will provide you with our reasons.

Mr. Gerald Keddy: There's a point that I think is important to make on the salmon allocation because 26% of the salmon in the Nass River—as long as there are salmon in the Nass River—can be very significant, or it can be 26% of nothing. It's only there if the users and the people who own the watershed area look after it, protect the environment, and actually allow the salmon to reproduce and not be caught on the high seas by perhaps American fishers or others.

I think it's important that we take some responsibility for ownership of wildlife, and that's not a concept that most Canadians embrace. In Europe and other countries, such as Norway, they certainly embrace it. During the moose hunt, if a moose is on private land it's owned by the private landowner, not the country of Norway. So it's a concept that has some merit to be applied in Canada. It's not a concept that's rapidly or openly embraced by Canadians, but I find it a very interesting one.

This treaty is fairly complex, and in some places it's very complex. I'm not a lawyer, and when I read this treaty what I looked for and what I think found in it—and I'd like you to clarify this—is the fact that there is room for this process to evolve. The treaty itself can be changed. Specific parts of it can be changed, some of them through agreement by the Province of B.C. and the Nisga'a, and some of them through agreement by the Province of British Columbia, the Nisga'a, and the federal government.

I'm not saying this is something that will happen immediately; it may not happen at all. But the important thing is there is opportunity for natural evolution of the process. I'm not sure, but it may be easier for this process to evolve than for the Constitution of Canada to evolve, because you need eight provinces to agree to it. Can you comment on that?

Mr. Tom Molloy: With respect to evolution, I think there are two parts. First of all, the treaty anticipates an evolution. There is no obligation on the Nisga'a to draw down all of the powers they are provided with under the agreement. So they have the ability to take on lawmaking authority over time.

With respect to the amendability of the treaty, there is a provision that it can be reopened or provisions can be amended with the consent of the parties. But I think it's important to note that from our perspective, it is not intended that the treaty would be reopened with respect to the substantive matters around cash and land. However, the amendment provisions—again from our perspective—are more intended to apply if provisions are found not to work, so that the parties would not necessarily be hamstrung by something that proved to be unworkable, or in time, as governance changed in both Canada and the provinces, it would allow for some flexibility there.

• 1805

The Chair: One short question, Mr. Keddy.

Mr. Gerald Keddy: Thank you, Madam Chair.

I have one last question, a question that relates to process. Mr. Scott had stated earlier that he would have liked to have seen the process open, that it would have been a public process. I'm not familiar with behind-the-scenes negotiations on many issues, but certainly have been involved on some minor ones. To my knowledge, usually negotiations are held between parties and then the process that comes out of that is made public. You have public hearings and you go through the area, and you get input from various people, and that input can cause your agreement to change or not to change, but you never open a process up at the beginning in any process that I'm aware of. And to my knowledge this process was negotiated, there were public meetings, the treaty was explained in B.C. I think there were 150 meetings in total in the province of British Columbia.

Certainly we have a process now. I'm not in total agreement with the fact that the treaty comes to us already signed by the federal government, and we can approve it or we can essentially throw it out, or throw it back. But that's—

The Chair: Mr. Keddy, a short question.

Mr. Gerald Keddy: But that's the process. Could you comment on that?

The Chair: Mr. Molloy, a short answer.

Mr. Tom Molloy: A long question needs a long answer, Madam Chair.

The problem is that negotiations in British Columbia have been evolving in terms of public participation. The Nisga'a treaty began 25 years ago, when the manner in which you described negotiations was the order of the day. Since that time the British Columbia process has become open. There are public negotiations.

We at this table, after the agreement in principle, entered into an openness protocol agreement. We did in fact have several public treaty meetings. In addition, we went through the extensive consultation process that I outlined.

So the Nisga'a treaty evolved as the thinking in terms of openness evolved in British Columbia.

The Chair: Mr. Watson, you wanted to add something.

Mr. John Watson: It's also important in talking about the consultation to note for the record that there are a number of areas where the agreement changed subsequent to the agreement in principle, as a result quite specifically of consultation with third parties, and I think that's important. The nature of ownership of the Nisga'a highway is an example: the way it's done in the final agreement is quite different from the way it was contemplated at the time of the agreement in principle. Other examples are some of the elements of the forestry transition provisions, the forms of replacement tenures in forestry areas, and the nature of clam harvesting that's included in the agreement.

So all of that is to say that the consultation process did result in changes in the final agreement that you're being asked to consider.

The Chair: Thank you.

Is there anyone on the government benches at this point that has another question? I understand Mr. Scott has another question, and Mr. Bachand.

Mr. David Iftody: Madam Chair, we'll pass on this side.

The Chair: Okay. Mr. Scott and then Mr. Bachand.

And I appreciate the witnesses staying so late. Thank you.

Mr. Mike Scott: Mr. Molloy, I want to ask you some questions regarding the charter and the application of the charter, but just before that, for the record, I'd like to ask, where do you live? Where's your home?

Mr. Tom Molloy: Oh, Saskatoon, sometimes.

Mr. Mike Scott: I see. And how long have you been responsible for the Nisga'a negotiations?

Mr. Tom Molloy: I became responsible in July 1996, I believe, following the signing of the agreement in principle.

• 1810

Mr. Mike Scott: So it's getting to be three and a half years that you've been on the file.

Mr. Tom Molloy: Something like that.

Mr. Mike Scott: Are you an employee of the department, or are you retained on some other basis?

Mr. Tom Molloy: I'm a contractor.

Mr. Mike Scott: Okay. On the applicability of the charter—

Mr. David Iftody: I have a point of order, Madam Chair. In Mr. Scott's first question to Mr. Molloy he suggested he was disingenuous, and I let that one go. Now you're asking where he lives. I really don't see the relevancy of this kind of questioning to the purpose of reviewing this document. If it occurs again, I would ask Mr. Scott to either explain himself or refrain from those kinds of odd questions.

The Chair: The chair acknowledges that, as introduced, Mr. Molloy is the chief negotiator for the Government of Canada on the Nisga'a agreement, and he has consented to be here as a witness because he is very knowledgeable about that subject. Members of the committee asked to have him as a witness, so he has made himself available for this time period in order to answer our questions.

Mr. Scott, continue with your questions, please.

Mr. Mike Scott: Thank you, Madam Chair. I'm sorry that Mr. Iftody is so sensitive on issues that are a matter of public record.

Mr. Molloy, you and the government are asserting that the Charter of Rights applies to this agreement, and I know it's in the preamble that that statement is made. Fundamentally, Mr. Molloy, section 35 rights, which this agreement exhaustively sets out—and that's in the preamble as well—are collective rights in your mind, yes or no?

The Chair: Mr. Molloy, answer the question.

Mr. Tom Molloy: I don't know how to answer the question. I think some of the rights are collective.

Mr. Mike Scott: Mr. Molloy, I'm sorry, but—

The Chair: We're not going to badger witnesses here. We will let people answer the question when it's asked in the time period.

Mr. Molloy, continue with your answer if you want to.

Mr. Tom Molloy: I think some of the rights provided are collective and some are individual. There are provisions for the government to be accountable to the citizens. There are individual guarantees that citizens will be able to vote and to participate in the government.

The Chair: Mr. Scott.

Mr. Mike Scott: Mr. Molloy, in every Supreme Court decision I'm familiar with, section 35 rights have always been viewed by the Supreme Court of Canada as collective rights. They've been characterized that way, in fact, in the court's judgments.

Section 25 of the Constitution requires that in weighing the applicability of the charter vis-à-vis section 35 rights, the courts give a higher priority to the section 35 rights, which are collective rights. In our view, that makes it at least controversial—and I'm asking you whether you would agree with this—in that in the event that down the road there's a conflict between the section 35 rights, a collective right that may be exercised in the form of some legislation that Nisga'a Lisims government may exercise, and the individual rights that Nisga'a people feel they ought to be able to enjoy under the Canadian charter, the Charter of Rights may be trumped by section 35. Is that the case or not?

Mr. Tom Molloy: I think you have to look at the charter in its entirety. I think the charter tries to provide a balance between the various rights it provides. I recognize that section 25 reads as you state. However, there are other provisions of the charter that deal with protection. For example, section 15 protects disadvantaged groups, section 27 provides for the preservation and enhancement of multicultural heritage, sections 16 to 23 provide protection for francophone and anglophone rights, and section 29 protects the right to educate children in religious schools. So it's part of the interpretive provisions that the courts would apply in applying the charter to any individual circumstance.

• 1815

Mr. Mike Scott: But Mr. Molloy, none of those sections you refer to applies to individual rights. They all apply to collective rights. They don't apply to charter rights, which is the only area in our Constitution where individual rights are expressed.

Mr. Tom Molloy: I cite these examples because of the fact that it's to ensure that the charter is applied to take into account both the individual and the collective rights. It's a balancing that the courts would be required to do in the application of charter provisions as opposed to interpreting a treaty or provisions flowing from it.

The Chair: On the government bench, we have Mr. Iftody.

Mr. David Iftody: Thank you. I would like to follow the line of questioning by Mr. Scott, and my question is to Mr. Molloy as well.

I had the good gentleman from Skeena ask me this question about the application of the charter probably before the summer break, and he's entertained a few more in the fall. We've had this discussion many times, and questions have been raised in the House. We've been on record as saying this, so perhaps we need to nail this down a little more concretely if we could.

I thank you for enumerating those other rights with francophones and the other references to the charter. That's provided an even larger umbrella.

I would like to again make a comment. Tell me if I'm wrong in terms of the checks and balances that are in place in the legislation and the charter, for example, on the protection of women. My understanding is that section 15, the equality section, outlines that very clearly in the Charter of Rights. Beyond that, section 28 of the charter provides additional kinds of protections there. So those would be available equally to Nisga'a men and Nisga'a women in this particular example.

Even beyond that, Mr. Scott made reference to section 35 and the amending conference and formula that occurred in 1982-83 where subsection 35.(4) was introduced as part of that for yet another specific protection for aboriginal women. In other words, if you didn't believe what was already existing in the charter in the Constitution, if there was any doubt that the public announcement of aboriginal and treaty rights would not in some obscure way protect first nations women, then subsection 35.(4) was in there for yet another bar to prohibit any kind of discrimination.

Further still, in the preamble of the bill we are debating before us now, it says that all these protections apply in this legislation. And yet in the agreement too the Nisga'a people have basically stated that all those charter protections apply.

Do I have this right, or am I completely wrong in my prepositions and comments? It seems to me, sir, that there are at least four, five, possibly seven instances that have been named in the charter that would provide protections for women, in particular, for their rights and freedoms as Nisga'a women, as Canadian women, no matter what race they are. Am I making a correct assumption?

Mr. Tom Molloy: No, I wouldn't disagree with you on those points. I'd just like to make one other point. Not only does the treaty itself state that it applies—it's not in the preamble, it's actually a substantive provision in the treaty—there's also a requirement that the Nisga'a constitution include such a statement.

Mr. David Iftody: Thank you very much, Madam Chair. That satisfies my inquiry.

The Chair: As a clarification for the chair, you said there's a substantive provision in the treaty. Could you just outline that so we're all clear on it? It's not just in the preamble.

Mr. Tom Molloy: It's in the general provisions in paragraph 9 on page 18. I'll just read it for the record. It says:

The Canadian Charter of Rights and Freedoms applies to Nisga'a Government in respect of all matters within its authority, bearing in mind the free and democratic nature of Nisga'a Government as set out in this Agreement.

• 1820

As I say, under the governance section, there is a requirement that their constitution must also contain a clause related to the charter.

The Chair: Thank you very much.

Did you want another five-minute round, Mr. Scott?

Mr. Keddy, would you like to take another round? Go ahead.

Mr. Gerald Keddy: On the fee simple property ownership, I'd like some clarification from you or from someone else on the fact that on page 32 it says:

In accordance with this Agreement, the Nisga'a Constitution, and Nisga'a law, the Nisga'a Nation may:

a. dispose of the whole of its estate in fee simple in any parcel of Nisga'a Lands to any person; and

b. from the whole of its estate in fee simple, or its interest, in any parcel of Nisga'a Lands, create, or dispose of any lesser estate or interest to any person, including rights of way and covenants similar to those in sections 218 and 219 of the Land Title Act

without the consent of Canada or British Columbia.

Then it goes on to paragraph 5:

A parcel of Nisga'a Lands does not cease to be Nisga'a Lands as a result of any change in ownership of an estate or interest in that parcel.

To my knowledge, this has been completely misrepresented by a number of people, and I have yet to hear a clear and concise answer to it.

I want to use another analogy. If you take the municipality I live in, the Municipality of Chester, Nova Scotia, I own my land. I have private ownership, fee simple ownership, still within the Municipality of Chester and subject to the rules, regulations, and laws imposed by that municipality and also the Province of Nova Scotia. Is this the same thing here? Yes, Nisga'a can sell the estate to another person or to a non-Nisga'a; however, those are still viewed as Nisga'a lands falling under the jurisdiction of Nisga'a government. Am I oversimplifying that?

Mr. Tom Molloy: No. I think that's a fair statement.

The only point I would repeat is that even though it remains Nisga'a land, if it's not owned by a Nisga'a citizen then there is no ability to tax through the treaty.

Mr. Gerald Keddy: So if I'm following what you are saying, if a non-Nisga'a bought a piece of Nisga'a land, the Nisga'a would lose taxation ability over that piece of land?

Mr. Tom Molloy: They're not able to tax non-Nisga'a citizens.

Mr. Gerald Keddy: That's something that needs to be made very clear, because what we've heard in much of this debate is taxation without representation, and that's absolutely false. It's not the case at all.

Mr. Tom Molloy: In the treaty itself the provision with respect to that is quite clear.

Mr. Gerald Keddy: Thank you.

The Chair: Mr. Molloy, for clarification, is there a paragraph you would wish to refer to?

Mr. Tom Molloy: I'm just looking for it, Madam Chair. It's paragraph 1 in the tax chapter. I'll just find it here.

The Chair: On page 217, Mr. Scott, is it? It's in chapter 16, I believe.

Mr. Tom Molloy: It says that Nisga'a Lisims government may make laws in respect of direct taxation of Nisga'a citizens on Nisga'a lands in order to raise revenue for Nisga'a nations or Nisga'a village purposes.

The Chair: Thank you very much.

Mr. Scott, I'll give you a couple of minutes and then I want to be able to let our witnesses retire for the evening. Perhaps you wish to take one more question, or you may wish to pass.

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Mr. Mike Scott: First of all, I have just an observation, Mr. Molloy. I guess I have to repeat myself over and over again, because the agreement does provide specific future ability for Nisga'a Lisims government to tax non-Nisga'a people living on Nisga'a lands, based on future negotiations with the federal and provincial governments. That's a fact. That's contained within the agreement.

Mr. Tom Molloy: My recollection of that provision is that it “may” negotiate.

Mr. Mike Scott: Yes, but I'm saying the door is open.

Voices: Oh, oh!

Mr. Mike Scott: Coming back to the applicability of the Charter of Rights, the one area of concern many people have had, particularly the constitutional and legal experts we've been talking to, is why the negotiators would have put in, under paragraph 9 on page 18, as a qualifier:

The Canadian Charter of Rights and Freedoms applies to Nisga'a Government in respect of all matters within its authority,

—that's a good statement, but then it goes on from there—

bearing in mind the free and democratic nature of Nisga'a Government as set out in this Agreement.

Could you tell me what the thought process was behind the negotiators putting that clause in there? We're really intrigued and interested to know why that qualifier is in there and what it means.

Mr. Tom Molloy: The language provided is similar to the language of section 1 of the charter, which makes it clear that charter rights are not absolute. Governments, including Nisga'a government, must demonstrate the justification for any limitations on charter freedoms. This phrase therefore reflects the Nisga'a Final Agreement provision that establishes a free and democratic government structure. It's the same kind of provision that applies to other governments, and again, it's a matter for interpretation of the courts in making a judgment.

The Chair: Thank you very much.

That is the end of our time for the day.

Mr. Molloy and Mr. Watson, we appreciate your testimony and your time here before us today.

I thank the committee members.

I remind us that we are meeting at 9 a.m. tomorrow. The room is next door, and the meeting will be televised. We will have the Nisga'a as our witnesses.

We'll adjourn until tomorrow.