HERI Committee Meeting

STANDING COMMITTEE ON CANADIAN HERITAGE

COMITÉ PERMANENT DU PATRIMOINE CANADIEN

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, May 17, 2000

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[English]

The Chair (Mr. Clifford Lincoln (Lac-Saint-Louis, Lib.)): I declare the meeting of the Standing Committee on Canadian Heritage open for this afternoon's session, which is convened to continue the study of Bill C-27, an act respecting the national parks of Canada.

We are very pleased today to be able to greet representatives of the first nations. Representing the Assembly of First Nations we have Chief Dennis White Bird, and from the Coalition of First Nations we have James Plewak.

I would like Mr. Plewak and Chief White Bird to introduce the people who are with them today.

Vice-Chief Dennis White Bird (Assembly of First Nations): Thank you, Mr. Chairman.

I have with me today Grand Chief Rod Bushie from Manitoba, as well our legal support staff, David Nahwegahbow and Dianne Corbiere, who's also a legal partner with Dave.

The Chair: I should explain. Thank you very much for your briefs. We have a rule here in our committee that unless briefs are translated into the two official languages, they can't be distributed officially. They will be translated and distributed to the members.

Chief White Bird, I leave the meeting to you to start addressing us.

Vice-Chief Dennis White Bird: Thank you.

I'll just give you a little bit of preliminary information. I will be presenting my brief from a national perspective, and Grand Chief Bushie will provide his brief from a provincial point of view. James Plewak will respond from a local perspective. He has been directly involved with Riding Mountain National Park. His band at one time had land within the national park, and they were forcibly removed and given land elsewhere. So we have a national, a provincial and a local perspective that we want to provide to your committee.

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I want to preface my remarks by saying good afternoon to the committee, to you, Mr. Chairman, and to the ladies and gentlemen who are here, the honourable members of Parliament. It is nice to see the member of Parliament from Dauphin—Swan River here, Inky Mark. I would like to acknowledge him as the MP who represents the Rolling River Band, of which I was a chief at one time, as well as Keeseekoowenin.

There's a number of first nations that surround the Riding Mountain National Park. I'm not sure if they've had an opportunity to view Bill C-27 and actually make any recommendations as such.

I also want to add that following my presentation I'll have the lawyer, David Nahwegahbow, make a presentation on a number of issues and zero in on some of the legal concerns we have with respect to Bill C-27.

At the outset of my presentation I wish to make it clear that the Assembly of First Nations does not find serious fault with the general aims and objectives of Bill C-27. For our part, the protection and conservation of the environmental integrity of lands, water, plants, and wildlife is an exceptionally worthy purpose. It is appropriate and commendable for the Government of Canada to be taking the steps we are now considering. By that I mean we have no difficulties with the aim in terms of protection and conservation of plant and wildlife within the Riding Mountain National Park.

I want to point out that we do have some concerns with respect to other aspects of the Supreme Court decisions that have been rendered within the last 20 years.

Bill C-27 seeks to ensure that ecological integrity is paramount in the federal parks agenda. The necessary measures for carrying out this important task will include increased penalties for wildlife poaching and illegal trafficking in protected wildlife, rare plants, and fossils. In our view, these are well intentioned, deserving, and non-contentious objectives.

Of course we note that in this particular area we understand and know that there are aboriginal and treaty rights of the first nations we represent, and we will certainly address them, in terms of the Supreme Court decisions.

This is not to suggest, however, we have no concerns whatsoever to bring forward. We have a number of concerns with regard to the consultation process behind the bill and how the first nations might fit into a new Canadian national parks regime. The Assembly of First Nations cannot fully support the legislation at this time. We want to ensure that adequate consultation takes place.

I might suggest the committee undertake to visit some of the first nation communities that are adjacent to or within national parks. I think it's very important to hear the people. It is also very important that these people have an opportunity to address your Bill C-27 as it relates to treaty and aboriginal rights.

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One issue the Assembly of First Nations wishes to bring to your attention has more to do with the role of the first nations in how the pertinent decision-making to attain these objectives is made, and how these measures shall be eventually carried out. As you are all aware, the first nations hold certain rights with respect to much of the lands under consideration within the discussion of Bill C-27. We also have certain expectations of the Government of Canada as to the future of national parks management and the role of the first nations in the management process, which we want to bring to your attention today.

In terms of the policy development and decision-making process, we seek to ensure that first nations will be appropriately consulted and allowed to participate. Our concerns as to the role of first nations are focused upon the need for accommodation of our legal, moral, and constitutional rights—

The Chair: Excuse me a minute. I just want to advise the members that this bell is not a vote bell, it's just a quorum call, so don't worry about it. Sorry.

Vice-Chief Dennis White Bird: —and the relevance of the proposed legislative framework for the establishment and implementation of meaningful shared management arrangements between the Government of Canada and first nations.

While I do not wish to dwell on the past, there is a purpose in calling attention to the fact that it was not too many years ago, in 1969, that the Government of Canada was in a position to propose that the first nations should have no claim to aboriginal rights. At the same time, Canada was seriously considering whether or not the ancient treaties it signed with our nations were still compelling and deserving of honour within a modern context. Here, of course, I am referring to that highly charged social, legal, and political debate that surrounded the 1969 white paper, which was put forth as a solution to the problem circumscribing the Indian problem.

We, the first nations of Canada, saw that proposed solution as a distinct and exorbitant threat to our existence as nations and as peoples. It represented a dire threat to our culture, our rights, and our heritage. It also represented a call for an increased awareness of the need for better understanding and disclosure of the true history of Canada's formative years, and a call for extra vigilance about matters such as our aboriginal rights, our treaties, and our cultural and political identities.

Fortunately, in 1973, with the prudent assistance of the Supreme Court of Canada in Calder, we were able to put those concerns and conceptual misgivings to rest. We are still nonetheless left with an enduring and stubborn legacy from those foreboding days and the outdated and misinformed philosophies that fostered them.

In Calder, the majority decision held that the Nisga'a possessed aboriginal rights to their traditional territories, and these rights had survived European settlement. This decision was later followed by Guerin v. R., wherein the Supreme Court found that aboriginal rights that had not been extinguished were recognized by the common law and enforceable by the courts. It was also held that the effect of federal jurisdiction over Indian lands, subject to an existing aboriginal title, gave rise to a fiduciary duty of the crown.

In Sparrow, the Supreme Court of Canada held that section 35 of the Constitution Act of 1982 recognized and affirmed the existing aboriginal rights for a member of the Musqueam Indian Band to carry out salmon fishing in the Fraser River, where his ancestors had fished from time immemorial. The court also found that this constitutional recognition and affirmation provided sufficient protection for carrying out those activities, despite federal legislation that would have otherwise prohibited those rights and activities.

Subsection 35(1) of the Constitution Act, 1982 relates directly to the rights of aboriginal people of Canada. It states: “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”

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The Sparrow decision also set a standard for justification that any legislation that impaired an aboriginal right would have to meet those standards in order to be valid against the aboriginal right. Aboriginal and treaty rights may be regulated by federal law only if those laws can be shown to meet the applicable criteria under the Sparrow test.

In the past, it had been held that aboriginal and treaty rights have been vulnerable to unilateral regulation and extinguishment by the federal government. This vulnerability to unilateral extinguishment has now been nullified, as these rights are now entrenched in section 35 of the Constitution Act, 1982.

Of course the regulation of aboriginal and treaty rights is still possible, but subject to the test set out in Sparrow. Recently in Badger and again in Marshall, the Supreme Court of Canada has affirmed that section 35 aboriginal and treaty rights are indeed subject to federal regulatory measures. However, such regulation must be shown by the crown to be justified, as per the Sparrow test, on the basis of conservation or for some other grounds of compelling public importance.

Sparrow, of course, also stands for the principle that the crown must carry out meaningful consultations with the first nations in the carrying out of activities and the development of policies that will impact upon our rights and it must gain our consent to such developments.

In the 1998 Sundown decision, the Supreme Court was asked to address issues related to the application of the Province of Saskatchewan's Parks Act and Parks Regulations and the Natural Resource Transfer Agreement in relation to the incidental hunting and fishing rights of a Treaty No. 6 Indian.

In this decision, which involves consideration of provincial legislation, in an analysis that closely parallels the other federal cases I just mentioned, the Indian respondent had cut trees in a provincial park in order to build a temporary hunting cabin. He asserted that this activity was part of his entitlement under treaty and that it was a necessary aspect of his exercise of hunting and fishing rights.

He was charged with contravening the provisions of the provincial legislation by building a dwelling on parkland without permission. He was subsequently convicted, then successfully appealed that conviction. The Supreme Court held on further appeal that his building activity was “reasonably incidental” to the exercise of his treaty rights:

Treaty rights, like aboriginal rights, must not be interpreted as if they were common law property rights. Any interest in the hunting cabin is a collective right that is derived from the treaty and the traditional expeditionary method of hunting; it belongs to the band as a whole....

While this case involved the consideration of the Natural Resource Transfer Agreement, constitutional principles, and the relevance of Treaty No. 6, it actually turned on the application of the Sparrow test to provincial legislation. The Supreme Court dismissed the provincial appeal. This case is especially helpful to this discussion because it illustrates for us the unique character of first nation treaty rights and how they interact with legislation that purports to limit or prohibit the exercise of those sui generis rights.

We take note that in certain situations the national parks regime will need to be able to address aboriginal and treaty rights that are clustered. By this, I mean to refer to those places within national parks where there are aboriginal or treaty rights associated with sacred sites or burial grounds. These situations will call for imaginative and flexible arrangements for the purpose of accommodating the exercise of collective first nations rights and to provide for the appropriate protection of the sites themselves.

One such site that comes to mind is the burial ground that was uncovered several years ago within the bounds of Fort Témiscamingue National Historic Site. This is a matter of great concern to the Timiskaming First Nation.

However, due to the impediments presented by the current comprehensive claims policy, the federal Minister of Indian Affairs and Northern Development cannot recognize the existing aboriginal title or rights within the historic site. For that matter, the Minister of Canadian Heritage is also restricted in her ability to address the issues presented by this stipulation due to the limitations of the current legislative mandate.

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We need to seriously consider these matters further. My colleague, Mr. David Nahwegahbow, will have more to say about that later in today's schedule of presentations.

In closing my presentation, I wish to say a few things about our inherent rights and jurisdiction. It is our belief that the inherent rights and jurisdiction of the first nations come from the Great Spirit. It is neither granted nor subject to the approval of any other nation. As first nations, we have the sovereign right, the jurisdictional rule within our traditional territories. Our lands are a sacred gift. These lands have been provided to us for the continued use, benefit, and enjoyment of our people, and it is our ultimate obligation to the Great Spirit to care for and protect them.

Several years ago, Canada responded to the recommendations of the Report of the Royal Commission on Aboriginal Peoples. The main focus of that policy response, entitled Gathering Strength, was to renew the relationship with the aboriginal people of Canada. The new approach to our issues builds upon the principles of mutual respect, recognition, responsibility, and sharing. It has four key objectives: renewing the partnerships; strengthening aboriginal governance; developing a new fiscal relationship; and supporting strong aboriginal communities, people, and economies.

We look to this commitment for mutual guidance and assistance in the recommendations we make for this process today. For us, aboriginal title and rights means that we, as first nations Indian people, hold legal rights of property to our lands and resources and we have the right to maintain our sacred connection to our lands by governing our territories through our own forms of traditional governance systems.

We have responsibilities towards these lands and to the plants and the wildlife that inhabit the land and provide for us. These responsibilities include our role as stewards and protectors of the land and of all that live within our territories, in order to achieve a balance and harmony with nature. This is the essence of our traditional relationship with the land, and all our spiritual wisdom points to this principle as a cornerstone of our identity and existence as aboriginal people and as nations.

We have the right to exercise our jurisdiction within our traditional territories so as to maintain our sacred connection to our lands through prudent management and conservation of the resources for the economic survival and well-being of our communities.

In the new regime for the management of national parks, the first nations must have a clear role and accommodation as a full partner with Canada in relation to food-gathering through hunting, fishing, trapping, and harvesting for the well-being of our first nations; conservation, management, and environmental protection of our traditional territories and all renewable and non-renewable resources; economic rights, including access to resources and commercial activities; spiritual rights to practise our religion, spirituality, customs, traditions, and culture, including protection of our sacred lands within our care; accommodation of traditional activities and pursuits; cooperative management, training and employment opportunities; and enhanced interpretation of first nations history and culture.

Here are our recommendations:

One, it is recommended that all necessary steps be taken during the legislative and policy development of the new Canada National Parks Act and any related regulatory framework to ensure that all affected first nations are provided with the opportunity for meaningful consultation.

Two, it is further recommended that the legislation to be drafted for establishment of this new national parks regime provide the Minister of Canadian Heritage with a sufficient mandate and authority to develop and implement, in partnership with first nations, the wide range of arrangements necessary to accommodate their rights and to protect their rights within Canada's national parks.

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Three, it is also recommended that arrangements be made to ensure that first nations are consulted and have a role in the development of any legislative measures, including regulations, that involve or may impact upon our rights and our interests in the proposed new national parks regime being considered under Bill C-27.

In addition, I would like to make an extra comment with respect to low-flying aircraft in northern Quebec, as well as in northern Canada. It has been made known to us that there is a concern that low-flying aircraft have been very cumbersome and have affected the harvest areas of the people who live in that territory, including the birthing and calving of the animals that live in those areas.

That concludes my presentation. However, I'm going to ask my legal representative to speak to certain clauses of the bill.

Thank you.

The Chair: Mr. Nahwegahbow.

Mr. David C. Nahwegahbow (President, Indigenous Bar Association): Thank you, Mr. Chairman.

I don't have a copy of a submission, but I did have a summary of the Delgamuukw decision that I circulated. Unfortunately I didn't have it in French, so I understand it's not being made available to the members. However, I will be referring to the case, and perhaps it will be part of the record.

As well, I would like to provide the chairman with a copy of the Delgamuukw decision, which is in French and English, so it forms part of the evidence of your committee.

The Chair: It will be distributed to the members.

Mr. David Nahwegahbow: Okay.

I would like to refer specifically to Bill C-27, so if you have a copy, I will be referring you to some specific clauses. My representations will be a further elaboration of some of the comments made by the vice-chief.

First of all, I would like to refer you to clause 4 of the bill, specifically subclause 4(2). The way the bill is proposed and the way the National Parks Act currently works, because the enactment of parks legislation is pursuant to the public property jurisdiction of the federal government, there's a requirement for clear title to be vested in Her Majesty, and in cases where there is outstanding aboriginal title, there is some question as to whether or not there is clear title in Her Majesty, the Queen.

Subclause 4(2) contemplates the creation of park reserves, and this is a mechanism that's in the current act, but this subclause changes fairly significantly the existing mechanism. Where there is an outstanding aboriginal title claim, park reserves can be created, according to this clause, only if they've been accepted for negotiation by the Government of Canada under its comprehensive land claims policy.

There are several problems with that. First of all, it requires that it be accepted for negotiation under federal claims policy, but what about situations where, for example, the first nation or the claimant has decided not to go under the comprehensive land claims policy but has decided to file a claim in court? Ultimately there may very well be a ruling that aboriginal title exists in that situation.

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There are also some serious questions about the legality of the comprehensive land claims policy. The comprehensive claims policy was introduced just following the Calder decision in 1973. It was then amended in 1986 under the minister at the time, Bill McKnight.

There have been some important decisions since 1986, and those cases have not reflected themselves in the comprehensive claims policy. The most notable of those cases is the Delgamuukw decision, which was decided two years ago. That was a very substantial ruling that defined aboriginal title to be, for one thing, a property right. There was some question as to whether or not aboriginal title was a property right prior to Delgamuukw. The Supreme Court of Canada made it clear that it is a property right. More or less, the court recognized that although it's different from fee simple, it is a very important right on the same level as fee simple.

The court also said that aboriginal title is the right of exclusive occupation. That raises questions, then. How can you have exclusive occupation if you have a park there, unless there's some sort of agreement?

Aboriginal title, according to the court also, is not necessarily limited to traditional activities. They made a distinction between aboriginal rights and aboriginal title, and they said there's a spectrum of rights. At one end of the spectrum, you have a right to fish, which is an aboriginal right. At the other end, you have outright aboriginal title. If a group can prove that it has occupied its traditional territory for a great deal of time, since the time of assertion of sovereignty, then you can establish aboriginal title. Title is not limited just to traditional practices like fishing and hunting; in fact, the court said it includes many aspects that are not necessarily traditional. So the comprehensive claims policy hasn't kept pace with the Supreme Court of Canada.

Another respect in which there is departure with the comprehensive claims policy is the requirement for extinguishment. Delgamuukw did not require that aboriginal groups relinquish aboriginal title. The only time aboriginal title would be required to be surrendered is if the aboriginal group intends to develop its traditional territory in a way that is inconsistent with its connection with the land. I believe the example the court gave was where the Indian group wants to put a parking lot on a ceremonial ground, a parking lot in a sacred area. In those cases, an extinguishment or a surrender of title would be required before the aboriginal group could do that. Otherwise it's not required. The comprehensive claims policy makes it mandatory that aboriginal groups surrender their title.

There are many ways in which the Delgamuukw case now renders the comprehensive claims policy illegal. So by referring to it specifically in this bill, what does that do with the comprehensive claims policy? Does it give legislative status? Does it validate a policy that may be found to be illegal by the Supreme Court of Canada? Those are serious questions, and I would suggest that you think twice before including reference to the comprehensive claims policy in this provision.

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Clause 5, again, is a mechanism for creating new parks. It's a provision in the existing act. It requires, before the creation of any new parks, that clear title and unencumbered right of ownership in the lands be established.

One of my questions is that although that may be useful for the establishment of future parks, what does it do for parks that have already been created? The vice-chief mentioned the Timiskaming situation. I've been involved. That's a situation where it's not a national park; it's a national historic park. That is a little bit different under the existing legislation. It's not exactly the same as a national park. But that park started out as a national historic site. I understand it was acquired by the federal government in approximately 1993. It was pursuant to part II of the existing act. It was turned into a national historic park by Order in Council.

That is in the Ville Marie area, the old Fort Témiscamingue. It's within the traditional territory of the Timiskaming First Nation. It's also within the area identified as lands reserved for Indians under the Royal Proclamation of 1763. That should have been a signal to the administration at the time that those were Indian lands.

With the requirement for a clear title and the designation of that historic site as a national historic park, I really question, first of all, why it was turned into a national historic park without getting the concurrence of the Timiskaming First Nation. Secondly, given that there is outstanding aboriginal title there—at least potentially—does that invalidate the designation as a national historic park?

A voice: [Inaudible—Editor]

Mr. David Nahwegahbow: It's actually an historic park.

The circumstances that led up to the blockade of the old Fort Témiscamingue by the people from Timiskaming First Nation.... I guess they scheduled the area for redevelopment and redevelopment had taken place. The chief of Timiskaming tried to make representations to the Parks people to be involved in that and that was rejected early on.

It wasn't until some of the workers within the park uncovered some remains of some burial sites that finally Timiskaming was contacted. In fact, they uncovered one set of remains and kept digging—and this was with a backhoe—and finally, I guess, when they got to the fourth grave they decided they had better be careful and they contacted the chief of Timiskaming, Chief Carol McBride.

Following that, there were some fairly serious discussions with Parks officials. I must say that in those discussions there have been some very serious efforts on the part of Tom Lee, the CEO of Parks Canada, and some of the staff to be very good about dealing sincerely with the Timiskaming First Nation, but after the remains were uncovered. Unfortunately, there are some legal impediments under the existing act. One of them is the outright inability of the government to recognize aboriginal title, especially in the parks context, because the jurisdiction of Canada to enact the Parks Act is premised on clear title.

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The request that was made by Chief McBride and her community with regard to the old fort was that the aboriginal title be recognized. The reaction of Parks Canada was, we need to involve the Department of Indian Affairs because we can't do this alone. So we involved the Department of Indian affairs. The reaction we got from the officials was, sorry, we can't recognize aboriginal title because the comprehensive claims policy doesn't allow it. That was notwithstanding the Delgamuukw decision.

We met with Jane Stewart, who was minister at the time, and she said they couldn't recognize it, but they would act as if it existed. We tried to negotiate the implementation of that, and we couldn't do it.

At this stage we've had meetings with the Minister of Canadian Heritage, Sheila Copps, and hopefully a solution will come about shortly.

I understand that the people within the area of Timiskaming are interested in opening that park this long weekend. In fact, we'll be negotiating with Tom Lee and some of the people from Justice right after this meeting.

That's kind of a long-winded explanation of Delgamuukw and the issue of clear title, how it kind of weaves Timiskaming into what's made it difficult for the first nation to have its title recognized at the old fort.

I have a few other comments on the bill, and I'll just flag them a little more quickly.

Subclause 6(2) contemplates the settlement of a land claim, and it says: “When a claim referred to in subsection 4(2) is settled, the Governor in Council may, by order,” create a park under schedule 1 “if the Governor in Council is satisfied that Her Majesty in right of Canada has clear title to or an unencumbered right of ownership in the lands to be included in the park.”

The objection I have with this is that it assumes the lands will be extinguished by a land claims settlement. As I said earlier, the Supreme Court of Canada did not say that extinguishment was a requirement. If I were a legislator, I'd be concerned about legislatively validating an assumption within the current comprehensive claims policy that aboriginal title must be extinguished. That's not what the court said in Delgamuukw. The Supreme Court of Canada said that crown title and aboriginal title must be reconciled. There must be a reconciliation of those two titles. It didn't say that aboriginal title must be extinguished.

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Subclause 8(2) requires the maintenance of ecological integrity through the protection of natural resources. It requires that to be the first priority of the minister. If you look at the case law, the Sparrow case, which was referred to by the vice-chief, made it clear that in the allocation of resources—in that case fishery resources, but it could be wildlife or other plant resources—conservation is a priority. The next priority is aboriginal subsistence use. I suppose that if you equate ecological integrity with conservation, then the provision is acceptable.

I refer you next to clause 10. This enables the minister to enter into agreements with the federal and provincial governments and local and aboriginal governments for carrying out the purposes of the act. I don't have a problem with that. I think it's probably a useful provision.

The problem is with paragraph 10(2)(b), which allows the minister to enter into agreements “with a local government body having jurisdiction on lands adjacent to a park for the supply of water from the park to any place on those adjacent lands”.

By including local and aboriginal governments in subclause 10(1) and excluding them in paragraph 10(2)(b), either it's just bad drafting or the implication to me is that you can't enter into an agreement with an aboriginal government for them to supply themselves with water from park lands.

Clause 13 is another specific provision. It says: “Except as permitted by this Act or the regulations...no persons shall use or occupy public lands in a park.”

The vice-chief mentioned several cases. One of them was the Sundown case. That involved a provincial park, but it said that a native person who has a treaty right to hunt in an area is entitled to build his cabin there and occupy it. That was a Supreme Court of Canada decision. There was a similar decision called the Sioui decision in Quebec, again in a treaty right situation, which said that native people who have hunting rights in a certain area can cut wood to build a fire within a park.

This to me seems to be in contravention of those cases.

Should first nations who are in that situation be left to have that dealt with by a regulation and the discretion of the minister or the cabinet of the day? These aren't ordinary rights. The federal Parliament and the provincial legislatures said that existing aboriginal and treaty rights are recognized and affirmed. Those are now constitutionally recognized rights. They're not just normal common law rights. They're recognized in the highest law of the land.

Clause 14 deals with wilderness areas, and this again is a continuation of what's in the former act. Subclause 14(2) says: “The Minister may not authorize any activity to be carried on in a wilderness area that is likely to impair the wilderness character of the area.” Does subsistence hunting within a wilderness area impair its wilderness character? I don't know, but it's one issue that comes up in my mind, and that's why I flagged it.

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Next I'd like to refer you to clause 17. This is the clause that allows the Governor in Council to make “regulations respecting the exercise of traditional renewable resource harvesting activities” in specific named parks. It says in paragraph 17(1)(e):

any national park of Canada established in an area where the continuation of such activities is provided for by an agreement between the Government of Canada and the government of a province.

What about the Indians there? Those harvesting rights can be continued only if the provinces and the federal government agree, but the provinces are the ones that are continually prosecuting hunting violations. So how could you ever expect a province to agree to respect and recognize harvesting rights?

Subclause 17(3) of the bill says specifically: “Regulations made under subsection (1) or (2) may”, and then paragraph 17(3)(c) says: “prohibit the use of renewable resource harvested in parks for other than traditional purposes”. I mentioned to you earlier that the Delgamuukw case doesn't limit activities to necessarily traditional purposes. So if you have a park in an area that is subject to aboriginal title, you can't constitutionally limit it to just traditional purposes.

Paragraph 17(3)(f) says that the regulations may, “notwithstanding anything in this subsection, authorize the superintendent of a park”. This authorizes the superintendent of a park to modify the regulations to the specific circumstances. It says: “for purposes of park management, public safety or the conservation of natural resources”. I don't have problems with conservation and even safety, but park management is much broader than what's allowed in Sparrow and in the Delgamuukw case. Basically, park management could be anything. It's much too broad and I think it allows much too much discretion for the superintendent to be arbitrary.

My overall problem with clause 17 is the requirement for consultation, which is something that was alluded to by the vice-chief. The Sparrow case and the Delgamuukw case obligate the federal government and provincial governments that seek to infringe or that may infringe on aboriginal rights and aboriginal title to enter into consultation with aboriginal groups affected. The court said that consultation can mean a number of things. It can mean just communicating with the aboriginal group. But in cases where harvesting rights are affected, where it's wildlife legislation, consultation means consent, and there's no reference to consent in this provision.

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Subclause 25(1) of the legislation says: “No person shall traffic in any wild mammal, amphibian,” etc. We've had several cases now, including Marshall, that recognize the right of indigenous people to engage in the trade of wildlife. Again, it's a moderate livelihood. I don't know if there's a park in his area, but potentially that's affected. There are other areas where there are certainly some commercial aspects to aboriginal harvesting rights.

Another example is Cape Croker. There's a specific decision involving the Chippewas of Nawash and Cape Croker in the Bruce Peninsula area. I note that there is a park there, a marine park, which the court has declared and found to be subject to the title of the Indians from Cape Croker, the Chippewas of Nawash, and the Chippewas of Saugeen.

The definition of trafficking includes barter in subclause 25(3). Even exchanging of medicinal plants, for example, between different individual Indians within the same first nation and between first nations would be a violation of this.

We note as well that there's been a rather hefty increase in the fines and the penalties from $10,000 to $50,000. This is in clause 26. The potential for imprisonment, if it's to be an indictable offence, is a maximum term of five years. These are pretty serious potential penalties for first nation people.

As defence lawyers, we inevitably get involved in defences of aboriginal people who are prosecuted under parks legislation or provincial wildlife legislation or federal fisheries regulations, the administration of which is delegated to the provinces. Those kinds of cases now don't qualify for legal aid, at least not in Ontario, and I understand the situation is the same across the country. So you're talking about some potentially very serious punishment for people who will be potentially without legal counsel.

As you may or may not know, to be able to raise the defence of aboriginal or treaty rights requires, generally speaking, a lot of preparation. You hear about aboriginal cases and the numerous days they take to litigate. They usually wind up in the Supreme Court of Canada, as we know.

Clause 42 I suppose deals with what used to be part II, the section that dealt with national historic parks. Clause 42 allows the setting apart of national historic sites. I don't know what's happened with national historic parks. Will the Témiscamingue national historic park, for example, now become a national historic site? Of course, the concerns are the same with regard to national historic parks and national historic sites. There are issues of clear title and issues of what happens with parks or national historic sites that have already been created where there is aboriginal title that hasn't been dealt with.

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Another point that was suggested to me was that there is no non-derogation clause in this bill. It would seem to me that would be the very least. I'm not saying that's acceptable, but non-derogation of existing aboriginal and treaty rights would be the very least.

There are several.... In the parks schedule, I notice that the parks that are listed in the existing schedule 1 are not included in this act. I understand part of the reason for this act being created is to simplify the creation of new parks. Previously parks had to be created by legislation, by a specific amendment to schedule 1, and I understand the Auditor General raised some concerns about the slowness of that process.

The new bill purports to delegate the creation of parks to the Governor in Council, to be able to do it by Order in Council, and there are some concerns about that, because at least if it's done by legislation, there's a requirement for public debate and for some more serious consideration in Parliament. If it's done simply by Order in Council, it leaves too much room for the discretion of cabinet.

In that regard, I kind of wonder about the parks that were listed in schedule 1 in the existing legislation not being listed in schedule 1 of the new bill. What happens to those parks? Does that mean they're de-scheduled?

In fact, one first nation for which we act, the Pic River First Nation, is beside the Pukaskwa National Park, which is actually a proposed national park because there is an agreement between the Government of Canada and the Province of Ontario that requires that before the park is created, aboriginal title or the claim of the Indians be resolved there. That first nation submitted a claim under the comprehensive claims policy, which was rejected. Now that first nation is going to be filing a statement of claim in the Ontario Superior Court.

Does the removal of Pukaskwa National Park from schedule 1, or the non-appearance of it in the bill, mean it's going to be subject to the new procedure of designation as a national park by Order in Council? If that's the case, we would have some serious concerns about that as well, because it potentially circumvents the legislative process.

There are two parks listed in schedule 1 in the bill that are also of some concern. There is the Middle Island extension, which I believe would be in the area of the Walpole Island First Nation. As I understand, Walpole Island has just issued a statement of claim asserting aboriginal title to their traditional territory. So you may want to look in more depth at the creation of the Point Pelee park, at least that particular part of it, the Middle Island extension.

There is also reference to the Georgian Bay Islands as a park. I'm from the Georgian Bay area, and so is my colleague, and I know there's an outstanding claim of aboriginal title to those islands. There is no clear surrender of those islands. I don't know if the people from the Georgian Bay first nations have been consulted about the creation of those islands as federal parkland.

• 1640

Those are my comments, and I appreciate your time.

The Chair: It is now 4:40, and we have to break at 5:30. There will be a vote in the House. If you want to have questions from members, which I would suggest is very important so we can get in some interaction with you, I would suggest that the two of you who are going to present notes perhaps summarize them to leave us some time for questions, if that's all right. We won't have another chance. These meetings are already pre-scheduled.

Go ahead then, Chief, if you can, just summarize your brief.

Grand Chief Rod Bushie (Assembly of Manitoba Chiefs; Assembly of First Nations): Bonjour. [Witness speaks in his native language]

Good afternoon, Mr. Chairman, honourable members, MPs, ladies and gentlemen.

First of all, let me apologize for not having my speaking notes, but I'm going to be interpreting from the languages of my tribes that I represent into English here.

My name is Grand Chief Rod Bushie, of the Assembly of Manitoba Chiefs, representing 100,000 first nations people in Manitoba.

In Manitoba, many of the 62 first nations are located near federal and provincial parks. First nations people have a special interest in land issues. Many of our first nations people rely on land to provide medicine, food, shelter, and water. In addition, certain lands are educational, cultural, and spiritual centres.

For years, Canada's position has been that since the first nations did not build factories, mines, logging mills, or engage in other economic activities, first nations do not need very much land and treaties do not give first nations any economic rights.

First nations people respect land and nature. That is the reason we have not rushed into smelly factories, mining, logging operations, and then built parks to offset the mess created.

Canadians do not know the history of Canada, and yet it's very simple. The prairie treaties were not peace treaties after the two sovereigns went to war. Treaties confirm the sovereignty of first nations governments and the interest of first nations people and lands. This included mutual economic interests of Canada and first nations. It must be remembered that treaties were required to continue the early fur-trade-based Canadian economy.

First nations people will still require land for medicine and water and will still require land to be retained in its natural state. At the same time, first nations used the lands for economic livelihood, such as food. Why is it that it's okay for a foreign company to cut down trees to feed its employees, but it's not okay for first nations people to cut down trees to build a house?

When Canadians lose their economic rights, there are consequences. I'll give you an example.

The nearest analogy in the Canadian experience can be seen in the Japanese who were placed in internment camps during the Second World War. Their constitutional rights were suspended. Their economic rights were taken away, their businesses confiscated. They lost what land they owned and were segregated into camps away from the rest of Canada. But eventually, the Japanese were compensated for their loss. Then, in an unprecedented gesture, they received a formal apology from the Prime Minister of Canada for the injustice that was visited upon them by Canada.

• 1645

This is not so for first nations people.

How have first nations been affected by Canadian parks and land developments? And it has been. These events have happened to first nations people in Manitoba, as they relate to parks. I will let my technical person, who's going to be doing the local part, give you more information on that.

Canada and the general public are beginning to understand some of these injustices first nations people have faced, and in the process of ensuring fairness, which began in Manitoba, one example is a community that has some land within Riding Mountain National Park. Again, I will let our technical person give you that information.

Honourable members of Parliament, again, my vice-chief from our national organization made mention that the AFN cannot support this legislation. I come, as well, from the provincial organization, the Assembly of Manitoba Chiefs, and here are some of the recommendations coming from the province of Manitoba and the tribes I represent in that province.

Federal agreements must continue to state clearly that proposed national parks and/or protected areas will respect existing aboriginal and treaty rights, and ensure that any new or proposed protected areas are identified and designated only after full consultation with affected first nations and that the management of the protected areas will be planned in consultation with the affected first nations.

The government must work with local first nations and communities in designating and developing national parks and protected areas. The cultural and spiritual and ecological values important to first nations communities must be considered when identifying and designating national parks and protected areas, and traditional ecological knowledge of first nations people will be incorporated into the process of selecting potential national parks and protected areas.

Ensure that the existing rights of access will not be jeopardized during the time of interim protection and future designation and development of national parks and protected areas.

In March 1998, an MOU was entered into with the Province of Manitoba on protected areas. The major goal of that is as follows:

Conserving the natural world for future generations is the common interest of all parties, and therefore the parties support the goal of establishing a network of protected areas representative of all natural regions of Manitoba by the year 2000.

Mr. Chairman, I want to thank you on behalf of the first nations that I represent in the province of Manitoba. We do have difficulties with what's been happening in our territory. And again, I apologize for not having written speaking notes, but as you all know what governments are all about.... You have two languages. I have five languages within my own government. I could have given you my speaking notes, but none of you would have understood them. So I apologize, and I say meegwetch for giving me the time to give you my briefs.

Thank you.

The Chair: You shouldn't apologize, Grand Chief. You know the languages of Canada; we don't know your languages. So I don't think you should apologize. Maybe we should.

Mr. Plewak, if you could summarize your notes, perhaps, so we'll have some time for some questions before the vote, I'd appreciate it.

Mr. James Plewak (Keeseekoowenin Ojibwa First Nation, Coalition of First Nations): Sure.

Good afternoon, honourable members, MPs, committee members. I apologize that we didn't have the resources either to translate into the French language.

The Chair: I should mention to you that your brief will be translated by the committee and distributed to the members, so they will definitely get the brief in both languages.

Mr. James Plewak: Thank you.

• 1650

My name is James Plewak. I'm a member of the Keeseekoowenin Ojibwa Nation, known as the Riding Mountain Band. My great grandfather was Chief Keeseekoowenin, and his father was Okanase, founder of our community.

I've been asked by Chief Blackbird and council to present our nation's words here today. I thank AFN Vice-Chief Dennis White Bird for facilitating our presentation to the committee. We support the recommendations made by the Assembly of First Nations. I also thank AMC Grand Chief Rod Bushie for being here to address the issues pertaining to parks in Manitoba.

Our relationship with the crown is defined in Treaty No. 2, entered into in 1871, providing the people of Canada with the right to immigrate and to settle on our lands.

Just two years ago on April 22, 1998, the Keeseekoowenin Ojibwa Nation, the Riding Mountain Band, appeared before this very committee when it was involved in Bill C-29. Chief Dwayne Blackbird and our elder Walter Archibald Scott simply related the tragic history of our relationship with Parks Canada from the time in the 1930s when our people were burned out of their homes on their legally established reserve to make room for parks.

Our reserve lands were swallowed up by the Riding Mountain National Park. Indians and parks were considered not to be compatible. Not only did we lose our reserves and our homes—and just to clarify, we weren't given additional lands—but we also lost access to the most important resources we had to sustain our lives. The park closed the doors to the lands guaranteed to us by our treaty. We had done such a good job sharing that there was nothing left for us, and the people we shared with were not inclined to give anything back.

In our presentation to the committee two years ago, we also told of the unacceptable ongoing relationship we had with the park: letters and calls going unanswered, a dangerously hostile situation between our people and park staff, and our exclusion from the benefits of having a national park in our backyard, some of it on our lands.

We told of the futile efforts to reach the attention of the then Secretary of State and his senior parks officials. We shared our frustrations with you then. We felt the members of this committee from all parties had heard what we had to say.

We come back to this committee today to report on the progress we have made in our relationship with parks, and to discuss Bill C-27 and how we believe it should further facilitate the evolution toward more harmonious relations. I want to tell you what has happened in the last two years. Our story is quite amazing, and I guess it's a good-news story.

After our appearance two years ago, we found it much easier to get an appointment with the Secretary of State. Jim Doughty, the executive assistant to the Secretary of State for Parks, the Honourable Andy Mitchell, provided enlightened support and became an important ally. Park officials met with us to negotiate a protocol we drafted for the establishment of a Senior Officials Forum to resolve issues and advance projects. The support of Alan Latourelle, then regional director general for Parks Canada, was instrumental in negotiating this agreement.

Mr. Mitchell personally came to our reserve in the park on November 8, 1998, to sign the protocol. A copy is appended to this presentation. We request that it be printed as part of evidence. In a series of meetings held according to that protocol, we've seen a fantastic change of attitude on the part of park officials, and they probably have learned that those Indians are not as mean as they thought they were.

We commend the support we received from Greg Fenton, superintendent of Riding Mountain National Park; acting superintendent Cheryl Penny; Gaby Fortin, now parks regional director general for western Canada, and Martin Egan of Indian Affairs, Manitoba regional office. We're working on projects ranging from co-management of fisheries in Clearwater Lake to employment equity, aboriginal procurement, and the gathering of medicine.

We are only scratching the surface of the potential that awaits this relationship. We believe both we and parks are not satisfied with the progress we have made, but we are encouraged and hopeful about the work that remains to be done. We appreciate that the relationship between Parks Canada and first nations is evolving rather dramatically. And we are pleased that we have been an impulse in that evolution as well as a participant and a beneficiary.

• 1655

We are pleased to see that Parks Canada has established an aboriginal secretariat. And we are pleased to support the work of Steve Langdon and Anne Morin. Part of the evolution, and now leading it, is the visionary yet practical conclusions of the Panel on the Ecological Integrity of Canada's National Parks.

Bill C-27 advances the evolution several more steps. It embraces the concept of park reserves involving first nations. It advances the exercise of traditional renewable resource harvesting activities. Our Senior Officials Forum is also pushing towards the evolution and promising innovations. It's good for Parks Canada and it's good for us.

We would like to see Parks Canada contracting with first nations for the management of the recovery of endangered species. We would like to see the first nations and Parks Canada working together within park boundaries and on first nations lands for the joint management of special projects.

Parks Canada has cooperated with us by retaining, for the time being, 320 acres of Indian Reserve 61-A as part of the Riding Mountain National Park. This simply maintains the status quo with regard to the lands that remain as Indian reserve, because all parties acknowledged that expropriation in the 1930s was invalid ab initio.

Yet the land is also legally within the boundary of the park. That's the way it is. And that's the way we want to keep it until we have decided on a course of action. We don't want to get kicked out of the park a second time. It's the first nation that wants to make that decision on whether or not being a part of the park is in our best interests. Also, we're willing to cooperate with the national park to determine what's best for both of us.

In our Senior Officials Forum we've offered discussion on a concept of an “Ojibwa Banff”. These are ideas such as an Ojibwa centre for fine arts. These are just concepts we've been discussing, but nothing is final yet.

We are interested in discussing the idea of an Ojibwa national park to be operated in conjunction with Riding Mountain National Park. That's another idea we've put forward. It's a concept that needs further development and elaboration.

If we find that there is no interest in working together, we'll have to go our own way and develop those lands in the best interests of our first nation alone.

A problem for both us and Parliament, however, is that Bill C-27 may not offer the flexibility we need. Under the new act, lands within the park are not easily excised. And Indian reserves are lands set aside for the exclusive use and benefit of Indians.

It may be that first nations in Canada will arrive at mutually agreeable arrangements for the harmonious use of reserve lands for park purposes without having to remove those lands from park designation. Or it may be necessary to remove them from park status. If it is necessary to do that, the language of Bill C-27 as it stands today would require an amendment of the act to accomplish this.

We invite the committee to express its approval of our discussion with Parks Canada about the work we are doing towards the formation of the Coalition of First Nations with interests in national parks. We believe that Parks Canada needs this independent counterpart that will engage in discussions of mutual interest. And we need some modest park resources to facilitate the coalition start-up.

We renew our invitation to this committee to conduct a review of the relationship of first nations and Parks Canada. We expect a review would be favourable to what has been accomplished and would allow this committee to recommend steps that remain to be taken.

We believe that the admirable objective of Parks Canada can be achieved in a manner consistent with the rights, title, and well-being of first nations, Métis, and Inuit people. And we seek the support of all Canadians who would like to see a progressive Parks Canada working cooperatively with us in developing this mutually productive relationship.

• 1700

In closing, we renew our invitation to this committee to visit us whenever you're in Manitoba. You will always be welcome. This is our tradition and practice. Thank you for listening to our words.

The Chair: Thank you very much, Mr. Plewak. I think yours was a very constructive and hopeful message. Considering that you started with reciting the experience of your people 70 years ago, it ends up that there seems to be a lot of goodwill on both sides, a feeling of reconciliation. And added to this there is the fact that Mr. Nahwegahbow was saying that at Fort Témiscamingue also there's a desire to meet and find a solution. So it seems like a very hopeful message to all of us, and we thank you.

We would like to open the meeting for questions.

Sorry, you wanted to say something?

Mr. James Plewak: Yes, I just wanted to emphasize that the relationship we have with Parks Canada is positive now, but as recently as three years ago it was not; it was very antagonistic. And it was as a result of the establishment of this forum, the Senior Officials Forum, that it has become very positive, and we'd like to see that develop further.

The Chair: It'll be our challenge, all of us, to make sure it continues. I'm sure there's a lot of goodwill on both sides, so there's no reason why it shouldn't. Thank you.

Mr. Mark.

Mr. Inky Mark (Dauphin—Swan River, Canadian Alliance): Thank you, Mr. Chairman.

First, let me welcome our witnesses. It's certainly nice to see folks from home, Manitoba. I want to say to the committee that both Chief White Bird and Chief Bushie are examples of strong aboriginal leadership from the province of Manitoba.

On a minor note, I want to say that I first met Chief White Bird back in the other life, in municipal government. I found that he had the courage and vision to go outside the boundaries of the reservations and to establish partnerships with non-aboriginal communities, which serves him very well. I congratulate him on all those efforts and I'm sure he continues to this very day.

I have two short questions, one pertaining to the whole process of decision-making and the other one on aboriginal rights.

As you know, Riding Mountain National Park, which you're talking about, is in the middle of my riding. Every park has problems and they're all special to the parks. Riding Mountain National Park has the only reservation, I believe in all of Canada, right in the middle of the park.

Do you believe this consultation process with aboriginal people should be done in a collective consultation with all the stakeholders, including the municipalities, or should you just do this on your own with Parks Canada?

Vice-Chief Dennis White Bird: My comments with respect to the decision-making process in dealing with aboriginal rights is that it has to be done with the first nations people by themselves. I find, in working with the general public, that they do not know what treaty rights are, they don't know what aboriginal rights are, and they don't know what the law states. But first nations people, as a whole, know exactly what their rights are and they know exactly what they want, and I think it's those people who should be consulted with respect to the pending legislation that we're talking about here. In the decision-making process, you have to ask the leadership and the elders and the people, the women and the youth. That's the consultation process that has to take place in terms of decision-making.

Mr. Inky Mark: Regarding the issue of lands inside the park, that reservation, what rights are not respected at this time?

• 1705

Mr. James Plewak: The lands of my community, Keeseekoowenin First Nation, the traditional territory of our people, is the Riding Mountain. When Treaty No. 2 was signed in 1871, it was understood that for lands not settled, our people could use them after treaty as they did before. So our belief is that as far as unsettled lands go, lands that were not taken up for farming, our people had the right to exercise their traditional practices and maintain a livelihood.

That belief is still held today, but in order to get Parks Canada to sit down and meet with us.... That's something we have to maintain, yet not make a barrier in ending any kind of discussion. By the fact that this act doesn't recognize our rights, we don't feel they're gone, yet we recognize the reality that this act and the national park are there and they do provide us with a benefit as well.

Mr. Inky Mark: I'll be more pointed in the same question. Do you want to resume hunting rights inside the park, within the jurisdiction of the reserve? Or do you have that now?

Mr. James Plewak: I couldn't give you a definite answer as to whether we do have that right under law at this point, but traditionally we believe we did and we do.

Vice-Chief Dennis White Bird: That's the kind of consultation that needs to take place in the community. It will be the community people who'll tell you what traditional right they want to exercise within the territories we talk about.

I just wanted to point out that when you talk about stakeholders as first nations people, we don't consider ourselves to be stakeholders: we consider ourselves to be the landowners. We did not give up our land, nor did we sell it. What we agreed to do was to share the land for agricultural purposes.

On another right, I guess, in terms of aboriginal rights, my grandfather was also born in Riding Mountain National Park, on the shores of Clear Lake. That's what we mean when we talk about aboriginal rights: we have sacred sites. When you have a sacred site in a particular territory.... Wherever a person is born it's deemed to be sacred. Wherever a person has died the burial site is sacred. We have burial sites all over Riding Mountain National Park. The park personnel don't even know that, but we, as first nations people, do. We know where they are because we have been there to make our offerings to the spirits.

Mr. Inky Mark: Thank you, Mr. Chair.

[Translation]

The Chair: Mr. de Savoye.

Mr. Pierre de Savoye (Portneuf, BQ): I'm quite sensitive to the concerns you've raised because if we look at the past, we see that no one challenged your right to live on and use this land. It was your home. To repeat what you said earlier, you shared the land so well that now, you wonder if it even still belongs to you.

• 1710

I appreciate the fact that you are least considering the possibility of participating in the parks management process. Perhaps this is the one solution that would make co-existence possible. Basically, you have lived on these lands since time immemorial and you have agreed to share them. This would be another example of the spirit of sharing.

However, on reading Bill C-27, I see that the minister may, if he so desires, conclude agreements with various authorities, including, of course, aboriginal authorities. The minister is not, however, under any obligation to conclude such agreements. I think there's room for improvement here. The bill could be amended to read that the minister must, in every instance, come to an agreement with the aboriginal peoples involved before park regulations are introduced or a new park is created. What are your views on the subject?

[English]

Vice-Chief Dennis White Bird: First of all, I want to say that I do thank you very much for your comments.

In terms of a very strong cultural value that we share, it's certainly part of our culture to share what we have, wherever it is. It is in the spirit and intent of that cultural value that we shared our land openly with the newcomers who came over here. We shared with them our food, our clothing, and our medicines to ensure that they sustained themselves. However, it seems there has been a change in terms of the value system, where we've now lost our land and our resources and the sharing is not coming back the other way.

In terms of the ministerial agreement, I think it's very important that the minister shares the power that he has with the local people, with local politicians such as the chief and the council from Keeseekoowenin or Rolling River or Waywayseecappo who surround the park, as well as with Grand Chief Bushie with regard to the national parks in Manitoba, as well as right across Canada where there are national parks, where there are problems now, where there is confrontation.

In terms of ministerial guarantees, there are all kinds of court cases. The Supreme Court has ruled. I want to outline some of these. Treaties are to be given in a modern context. Take a look at the Marshall case, which uses a 1760 treaty. It has been brought forward from 1760 to now, with a very modern context. It has been given a modern interpretation. No matter how old those treaties are, they're still applicable today.

Another thing the courts have said is that we must give a “broad and liberal” interpretation of what we mean here. Usually that broad and liberal interpretation will be in favour of the first nations person. So when you take something to court, when you take an issue to court, when you take Bill C-27 to court in the future, these are some of the guidelines that will be used to make a decision.

Most of all, the honour of the crown.... Where is the honour of the crown in our discussion today? I think that has to be discussed too. I think the honour of the crown is to go out and meet the communities, to go out and talk to the people who are the real owners of the territory and the resources that we talk about. To me, that's what ministerial means. The minister comes and sits down with us, face to face, and we sign something we agree upon. That's sharing of power and that's reaching a mutual consent where everybody's happy.

• 1715

[Translation]

The Chair: Mr. Bélanger.

Mr. Mauril Bélanger (Ottawa—Vanier, Lib.): Thank you, Mr. Chairman.

[English]

I have three things, quickly. First, on David's list of twelve items of concern, the government has listened and we're going to review them. If there are difficulties you've raised that have to be addressed, we'll do so.

One I might try to answer right now is number 11, relating to clause 42, which is a question, if I recall. You were asking what would happen to national historic parks. My understanding—and if I'm wrong I'll come back and correct it—is they would become essentially national historic sites. It's nomenclature. It's a matter of clarifying language. Any national historic parks would ipso facto be national historic sites, everything else being equal. So it's a matter of clarifying, simplifying, or differentiating language. That's all it is.

In terms of the overall question and desire for consultation, I want to take a couple of minutes, if I may, and provide, as much as I can, assurances of the government's intentions or state of mind, if you will.

I think there's a tremendous number of examples I can draw upon, and park officials can draw upon, to indicate that the Government of Canada essentially does not establish new national parks unless there is express support of the authorities involved in the land—or that have some desire to be involved—and the communities, including native communities.

I can give examples. For instance, on the Wager Bay National Park, five communities decided to oppose discussion of the park in 1980. They wanted the land claim to be dealt with first. That remained dormant for 16 years, until a land claim settlement was reached. Since then, discussions have resumed to hopefully establish a park in that part of the country.

The same can be said in the Northwest Territories, in the local community of Snowdrift, where there was a temporary end to discussions on the proposed east arm of Great Slave Lake National Park because of a lack of progress on the land claim.

You'll find the same thing in the Torngat Mountains and the Mealy Mountains, where there was lack of support from both the Innu and the Labrador Inuit communities, and these proposals were put on the shelf. So there has been consistent conduct by the government, and where there has been opposition and no desire, we have just held on to things to see if could massage them until eventually people could come together. There are a number of examples where that has occurred.

The most recent one members of our committee might relate to was on a similar bill that we dealt with on the marine conservation areas. You may recall there was opposition to setting one up in a particular area of Newfoundland, and the government said “Fine, we're not going to do it.”

So I just wanted to put some of these things on the record, to indicate there is no desire—and none can be shown that I know of—by the Government of Canada to say “Well, tough, if you don't agree we're going to proceed anyhow.” If there's been a desire, there's always been an adjacent effort to try to arrive at an agreeable compromise solution, no matter how much time it took to get there. That has not changed. That is still the way the government wishes to proceed in the creation of any new national parks.

Thank you.

The Chair: Thank you.

Mr. Bonwick.

Mr. Paul Bonwick (Simcoe—Grey, Lib.): Thank you, Mr. Chair, and thanks very much to the witnesses for taking the time to come to Ottawa and present to us.

• 1720

I've made many notes—and I notice most of my colleagues have also—and some of the information has been very helpful.

I want to spend a couple of minutes on a couple of issues that have been raised, and try to address them to see if there's a level of satisfaction on your behalf once I address a couple of things. One is the consultative process.

There seemed to be some concern addressed insofar as taking it out of the legislative domain and putting it into the Order in Council domain, recognizing the Auditor General's comments for expediency. But it doesn't totally take it out of the legislative domain. If I take you to subclause 12(2), it states very clearly:

At least every two years, the Minister shall cause to be tabled in each House of Parliament a report on the state of the parks and on progress made towards the establishment of new parks.

I should also mention that wherever we see the word “shall”, at one point it was “may”, and the committee had discussion around that. We removed the word “may” and incorporated the word “shall”, leaving the minister absolutely no latitude. The minister is therefore bound to involve both Houses of Parliament in that process.

As far as the consultative process is concerned, Dave, you identified your main concern over the legislation, in going to the Order in Council, was that at least there was a focus that there was a public consultative process through the legislative process.

Again, in subclause 12(1) it is very clear, and there is no option for the minister. It states:

The Minister shall, as appropriate, provide opportunities for public participation at the national, regional and local levels in the development of parks policy, the establishment of parks, the formulation of management plans and any other matters that the Minister considers relevant.

So it's not even simply the creation of parks itself; it's in the planning and the policy. That's one of the statements I wanted to make.

There were a couple of comments made about ensuring that treaties are respected when the provincial parks are being identified. When we go through the consultative process, it's right in the legislation that the minister must consult with the aboriginal people and in fact with all people who might have a stake in this. But it's my understanding that in an extreme situation, should the agency not be in a position to resolve all the issues or the major issues with the aboriginal people, they will not identify that as park land. Rather, in the short term, it would be identified as a reserve. Then they would try to resolve those ongoing issues through all applicable avenues available to them.

I'll leave it at that, so there's time for my colleagues on the other side of the desk to talk. But I just wanted to try to give you a comfort level on some of the issues with regard to the consultative process and say very clearly that the minister is responsible and has no room for latitude in that consultative process.

The Chair: If you have any comments to make, please do so.

Mr. Nahwegahbow.

Mr. David Nahwegahbow: Yes. I have just a very short response to that.

Of course, I don't think subclause 12(1) is really a good substitute for a full legislative process that involves very extensive consultations. I also note that although the word “shall” is in there, it says “as appropriate”. You must have had some debate on “shall” and “appropriate”, and I believe there's sufficient latitude to sidestep the requirement for consultation.

I like the suggestion made that there actually be built in a requirement to consult with first nations or aboriginal peoples potentially affected by parks.

• 1725

Mr. Paul Bonwick: If I might suggest one thing, we had a discussion on this, I think it was last week, and there were questions raised on that wording, that it was potentially somewhat contradictory in nature and that we eliminate the word “appropriate” and put in the word “applicable”. So if there are first nations or aboriginal people affected, where “applicable” she or he shall involve them in that, rather than where “appropriate”. That's something that will certainly be discussed.

Mr. David Nahwegahbow: I guess you get into the “shall, as appropriate” debate. There's definitely the discretion there. That's the problem. It leaves the discretion for the minister to not consult, and right now there is a requirement for consultation through a legislative process.

Thank you.

The Chair: Mr. Laliberte, and then Mr. Breitkreuz.

Mr. Rick Laliberte (Churchill River, NDP): [Member speaks in his native language]

You speak of land, and it's not an easy discussion for aboriginal people, because the trail that leads up to the year 2000 and I guess the trust between the peoples is what's being brought to question.

One specific question I have is, if clear title to the crown is required, would the government consider an openness by first nations to even designate national parks as well, or be part or party to national parks? Couldn't there be a dual title on some parts or sections of parks, as opposed to, as you mentioned, outright surrender or extinguishment?

There's so little left, and for aboriginal people to extinguish that for a national interest, or a global interest, which national parks are.... There are international commitments that this country is making, and by no means have we met our commitments by the allocation of parks in this country. There's a long journey to go yet.

So it's a relationship, and it might be a sound example of first nations' relations with this country in terms of righting the wrongs.

The other issue is the comprehensive land claims policy that's written right into this legislation. Should that be stricken from there since you have concerns about it?

You raise that in subclause 4(2). If you take it right out, it reads “accepted for negotiation by the Government of Canada”, and you strike out the rest of the wording of that. Is that appropriate?

We'll be going to clause-by-clause at some point in time in here, but I would ask at this time that if there are any written submissions, if you have draft copies of these clauses or your perspective on them, you would send them in writing—I would assume, to the clerk—because that would really help our process.

The other issue is that there is nothing in the act but the success story that you seem to have found. I was trying to find some way of creating maybe a clause or a process. Maybe an “aboriginal secretariat” were the words you used. But we had something like this happen with CEPA.

I'm not sure what the words were, but we had an aboriginal committee created under CEPA for environmental protection. Maybe that's something we could have, where grievances could be heard. Instead of a whole political or media antagonistic approach being taken, maybe there could be some legislative body created here that could address this and new parks being created in the future.

I certainly wouldn't want to see misunderstandings or misinterpretations of two parties trying to negotiate common cause, and some of these issues are common interests, in preserving the ecological integrity, as the first nations' presentation started off with. They do want ecological integrity foremost in all these parks, and not only in the parks but in general in Canadian jurisdiction.

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The issue of traditional ecological knowledge is not necessarily involved in here in terms of scientific data, in terms of bringing ecological integrity into place. I think there's science-based knowledge. You used the term, but I didn't know where you would suggest it be used in here, unless it were a secretariat to bring some form of involvement in national parks. I'm trying to see if we can bring the two together.

The Chair: By the way, that's a 15-minute bell, so I think we should break up in about six or seven minutes to get back to the House. We'll allow one last question from Mr. Breitkreuz.

So if you could answer Mr. Laliberte, we'll move on to Mr. Breitkreuz and then close the meeting.

Mr. Plewak.

Mr. James Plewak: As a first nation, we feel that the relationship we have established in the last few years is very positive, but it's also precarious. It could disappear tomorrow. It depends basically on the goodwill of both parties to make it successful.

The establishment of a secretariat has provided an additional avenue for us as a first nation to present our issues, but as a whole, I think something solid has to be recognized within the legislation that first nations do have interests within national parks, and it should be stated there.

The Chair: Thank you.

Mr. Nahwegahbow.

Mr. David Nahwegahbow: As a short point on Mr. Laliberte's question, I think it is possible for aboriginal title and crown title to co-exist. In fact, I think that's the mandate of the Supreme Court of Canada. Unfortunately, I believe the wording in the bill, the requirement for clear title, and the interpretation of the bill precludes that possibility at this stage.

I believe the crown does have legal title, and with the consent of first nations who possess aboriginal title, I believe it is possible to establish parks. In most places across the country, especially where aboriginal peoples are relying on subsistence activities, it's certainly to their advantage to have parks established, because it provides them protection, provided they have the opportunity to continue their traditional pursuits.

With regard to the wording of the clause that refers to the comprehensive claims policy, that clause definitely ought to go. But I believe the wording is unduly narrow anyway.

As I mentioned, you might have outstanding aboriginal title in situations where title has not been accepted, for example, where courts have said that a first nation claimant has aboriginal title, and I think the wording of that clause ought to allow for those circumstances and situations.

The Chair: Mr. Nahwegahbow, as suggested by Mr. Laliberte, you've raised a lot of points, and I guess we could pick them out of the record, but if you could summarize them in some document for transmission to the members, I think it would be helpful.

Mr. Breitkreuz, briefly, please.

Mr. Cliff Breitkreuz (Yellowhead, Canadian Alliance): Thank you, Mr. Chairman.

I too welcome you, and I certainly listened with interest to your presentation.

In your presentation you talked about lands, hunting, harvesting, harvesting claims and rights, and traditional rights. I'd like some clarification, if I could, please, as to intent and meaning when you talk about traditional lands and traditional rights regarding the national parks.

My question is this: Are you talking only about the establishment of new parks or about national parks with reserves in them or adjacent or close to the national park, or are you also talking about old established parks, perhaps 100 years old or even older, that may or may not have been the traditional lands, whether hunting or living, of the native people? Are you talking about those types of parks as well?

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Mr. David Nahwegahbow: I can tell you that certainly on the legal side, it doesn't matter whether a park is 100 years old or a park that was established yesterday. The Constitution Act applies, and aboriginal and treaty rights can be exercised by the aboriginal people who have that as their traditional territory or hunting or fishing area. It doesn't matter. It also applies in the case of both treaty and aboriginal rights.

Grand Chief Rod Bushie: I think it's overall; it's not only the parks. We've travelled. We have territories within the whole province of Manitoba. We have first nations in all parts of Manitoba. That's what we referred to in regard to our hunting territories or gathering territories. It's not only in the region.

The Chair: One last remark, Chief.

Vice-Chief Dennis White Bird: This is just a closing comment.

The Government of Canada has signed treaty land entitlement agreements with many first nations across Canada. Some of those agreements carry clauses to the effect that where there are lands of cultural significance or historical value, sacred sites, or burial sites within national parks, they will be made available to the first nation communities. I'm just wondering if the committee here has given any kind of sanctions to that effect within the policy.

The Chair: Chief, we don't make policy here at all. What we do is examine legislation that comes before us to see whether it can be changed or improved according to suggestions made by the members.

As you make suggestions, as you bring them forward, we examine them when we go by clause-by-clause. If some of these suggestions are acceptable to the members, then they go forward to the House to amend the legislation. But all the various suggestions you have made go on the record. They'll be transcribed. People from Parks Canada are here, so they're taking notes. We hope that between us, we can find some areas where we can agree to improve things.

Vice-Chief Dennis White Bird: Okay.

The suggestion I would make, then, is that this committee take into consideration the agreements that have been signed by treaty land entitlement first nations with respect to lands of cultural and historical value in national parks. We want to have an opportunity to take back our heritage as first nations people.

On a closing note, on behalf of the people we came with, I want to thank the committee for listening to us. Hopefully our participation is going to make a difference.

The Chair: Yes, it always does. Thank you very much.

The meeting is adjourned.