It's a pleasure to be back before this committee for the first time in the new Parliament, especially with so many new faces on this truly important committee for Canada. I, too, want to begin by acknowledging that we are on the traditional unceded territory of the Algonquin people.
I am pleased to be here with my honourable colleague the , Mr. Marc Miller, and our deputy ministers.
We understand that we've been asked to talk about the recent blockades and protests across the country, but I think I'm here mainly to talk about the complex underlying issues at their core. Our government understands that the recent rail blockades have had real impacts on Canadians, businesses and people across the country who rely on a working rail service to get to work, transport goods and keep their businesses running successfully, and also on indigenous peoples.
I think, as you know, that across all government departments, we're working around the clock to resolve this in a peaceful and lasting way. We welcomed the news last week that the remaining rail blockades had been removed and that regular rail service is resuming.
I think we understand that Canadians have been frustrated as they saw the impacts of the recent rail blockades continue, and some opposition politicians, we worry, were unfortunately focused on, as I think I said in the House of Commons, exploiting divisions within a community, which is not going to get us to lasting solutions and the kind of healing needed.
As the Prime Minister said so eloquently, Canadians expect us to work together to get through this together.
Marc and I are here to answer questions you may have because we believe it's really important that all of us truly understand the complexity and sensitivity of the situation and the danger of some of the inflammatory rhetoric we have heard in recent weeks.
As a physician, I am reminded that it's also the obligation of all parliamentarians to firstly do no harm. We need a lasting solution so that nations can take decisions together to achieve the certainty required for first nations, Métis and Inuit to ensure that their communities are healthy and vibrant.
The issues at the heart of this situation extend beyond a particular project, and deal with complex matters of indigenous governance, rights and title.
Over the past several weeks, my B.C. counterpart and I have been in ongoing communication with the Wet'suwet'en hereditary chiefs to try to de-escalate the situation and find a path forward to deal with these issues in a substantive way. While policing decisions are made independently and free from political influence, we were pleased that the RCMP in B.C. worked with the Wet'suwet'en to make operational changes to de-escalate the situation and make room for the in-person talks between the Wet'suwet'en hereditary chiefs and the federal and provincial governments.
We were also encouraged that Coastal GasLink independently agreed to pause work on the project during in-person discussions to help make that possible, and we were very grateful for Nathan Cullen's work in the de-escalating of the situation among all parties.
The weekend before last, when I met in Smithers with the Wet'suwet'en hereditary chiefs and the B.C. government, we had very frank and substantive discussions, guided by respect, on issues around Wet'suwet'en rights and title. We were also pleased that the members of the Wet'suwet'en Matrilineal Coalition participated in the first night of the meeting, and we were able to hear their very important perspective directly. These talks focused on two separate issues: the recognition of Wet'suwet'en indigenous rights and title throughout their territory and the issues arising out of the Coastal GasLink project. These topics were discussed separately, and with respect to rights and title, the parties focused intensely on the commitments to an expedited process to implement Wet'suwet'en rights and title.
The result of these discussions was a draft arrangement that will be reviewed by the Wet'suwet'en clan members in their clans and in their houses through the Wet'suwet'en governance protocols for ratification. I believe that over these two weeks...that they need that space to have those conversations independently of outside voices. I believe that the removal of the remaining rail blockades last week and the resumption of rail service provides the Wet'suwet'en nation with that space to have this important conversation of rights and title within their territory.
Out of respect for the process, Canada has agreed that the Wet'suwet'en Nation would have the time to consider the details of this arrangement before it was made public. If ratified, Minister Fraser and I have agreed to return to the Wet'suwet'en territory to sign it, and the parties have agreed to implement title on an expedited basis and to coordinate how we will work together. We are inspired by the courageous Wet'suwet'en people who took the recognition of their rights to the Supreme Court of Canada in the historic Delgamuukw-Gisday'wa case in 1997. We need to be clear that the court did not, at that time, grant title to their lands; it affirmed the rights of the Wet'suwet'en, but said that the question of title was to be determined at a later time and then implemented.
I believe that this arrangement with the Wet'suwet'en people will now be able to breathe life into the Delgamuukw-Gisday'wa decision so that future generations do not have to face conflicts like the one that they face today. As the late chief Wah tah Kwets said in the Delgamuukw case, “It is up to us to create a new memory in the minds of our children.”
While work remains, these talks have been an important step on reconciling complex matters of rights and title.
From education to fisheries, to child and family services, to policing, to court systems, we have made important strides forward in the hard work of what Lee Crowchild describes as “deconstructing the effects of colonization”.
Over the past five years, we have been moving away from the parameters of the Comprehensive Land Claims and Inherent Right policies.
Our government's approach to negotiating rights-related agreements is being developed through lessons learned from the over 150 recognition of indigenous rights and self-determination discussion tables across Canada. These negotiations involve almost one million indigenous people from 480 first nations, 44 Inuit communities and seven Métis organizations. Since 2015, we have been advancing interest-based discussions and ensuring that co-development is the core of any negotiations with indigenous groups.
In 2019, the governments of Canada and British Columbia and the First Nations Summit co-developed the recognition of reconciliation rights policy for treaty negotiations in British Columbia. This new policy eliminates the concepts that were the barriers to future treaties, agreements and other constructive arrangements, including extinguishment and cede and surrender. It demonstrates Canada's commitment to working collaboratively with indigenous and provincial partners, based on the affirmation and implementation of indigenous rights and in accordance with the principles of the UN Declaration on the Rights of Indigenous Peoples.
Together we are committed to resolving the issues we face and to implementing Wet'suwet'en rights and title. We understand that we are in a critical time together, and we are committed to building a new path together with indigenous peoples across Canada.
I want to start by acknowledging that we are gathered here today on the traditional and unceded territory of the Algonquin peoples.
I know that this directly impacted many of you in the room today, as it impacted the communities you represent, and the lives of your constituents.
The conversations that happened in Smithers with Minister Bennett are a positive and vital step, but there's no doubt that there's more work to do, work that many of you in this room know well as members of this important parliamentary committee. There's a lot of work to be done in addressing the underlying concerns of the Wet'suwet'en and the resulting solidarity actions that took place across the country.
However, I'm glad that together we can demonstrate a peaceful, achievable resolution. I believe the easy way is not always the right way. Sometimes using force is a sign of weakness. Over the past few weeks, we've seen the result of ignorance, fear and lack of understanding in vitriolic messages and comments online, through stories of individuals being targeted in public and private, and we saw that not far from here in Ottawa. An indigenous youth group had to move their planned weekly gathering due to the receipt of a death threat.
I think this shows that we have a long way to go when it comes to learning the dark parts of the history of this unreconciled country and its peoples, and truly making an effort to learn from one another and listen.
I've said this before and I'll continue to say it: When we don't have an open and honest dialogue, we simply can't move forward together.
Consistent, open and respectful dialogue is paramount to achieve peace, cooperation and prosperity in this country for all peoples.
It's in this spirit of peace and co-operation that I gathered with members of the Kanyen’kehá:ka along the rail tracks in Tyendinaga, as members will know. We pursued an open dialogue and made concerted efforts to move towards a peaceful resolution. Modest but important progress was made through this dialogue.
However, there was an immense amount of suspicion towards my presence—fear it was a ruse and that the police would move in. It's not every day that people are surrounded by police, and the reactions are normal. Parts of the conversation with the leadership of the community, elders and community members, including women and children, were very difficult, very painful and very personal. Upsetting stories were shared about this country's troubling treatment of indigenous peoples.
These are very serious issues which demand our attention, and have demanded it for hundreds of years, and there's no place in this discussion for rhetoric and vitriol.
The question I have found myself asking in the last few weeks is this: are we going to do things the way we have always done them, which has brought us to this point in our relationship, or do we take a new approach that engages in a true government-to-government relationship?
My greatest challenge in the past month in particular, but in the relationship in general, is trust. It prevents the best and most well-thought-out initiatives from moving forward. It is clear that our work must earn that trust over time.
In looking towards building a better future where we earn that trust, I believe it's important to acknowledge the past. For almost 500 years, indigenous peoples have faced discrimination in every aspect of their lives. The Crown, in part, has prevented a true equal partnership from developing with indigenous peoples, imposing instead a relationship based on colonial, paternalistic ways of thinking and doing. This approach has resulted in a legacy of devastation, pain and suffering, and it's not acceptable.
Many of us know where this has gotten us: a broken child and family system where indigenous children up to the age of 14 make up over 50% of kids in foster care even though they represent 7.7% of all Canadian children; shocking rates of suicide among indigenous youth, causing untold pain and hurt that will plague families and communities for generations to come; untenable housing situations where water that is unsafe to drink or even bathe in comes out of the taps; and communities that don't have reliable access to roads, health centres, or even schools.
When we formed government 4 years ago, we made many significant promises including on some of these areas I just touched upon.
We have delivered on much of that but the most important lesson we learned was that everything has to be done in true partnership. That Canada will succeed when we follow the voices of those whom we have ignored and disrespected for far too long, and those who lead communities across this country.
We know that there is no quick fix for the decades of systemic discrimination that indigenous peoples in Canada have faced. But our government is committed to putting in the time, energy and resources to right past wrongs and build a better way forward for future generations.
We do our best to undertake this work in a way that departs from much of our shared history—a history in which the inherent rights, leadership and cultural vitality have not been respected as they should have been.
Our approach is founded on partnership and co-development and is anchored in listening to indigenous leaders, elders, youth and community members and working to support their attainment of their goals based on their priorities.
Since 2016, we've invested $21 billion in the priorities of indigenous partners, priorities that have been set by indigenous partners, and together we've made some progress, but we still have a long way to close the unacceptable socio-economic gap that exists between indigenous and non-indigenous peoples.
For hundreds of years, indigenous peoples have been calling on the Canadian government to recognize and affirm their jurisdiction over their own affairs, to have control and agency over their land, housing, education, governance system and child and family services. Self-determination improves the well-being and prosperity of indigenous communities, and that's something all Canadians should strive to support.
There is no question that self-determination is a better way forward.
Self-governing indigenous peoples have a proven track record of greater socio-economic success. More children are completing high school, fewer people are unemployed, and health outcomes are much better. Indigenous-led initiatives are more successful, as we have seen time and time again.
There is a critical need to support nation and community-led success in every indigenous community in Canada, not just in education, but also in health care, water and resource management, child and family services, in short, in all sectors.
This is why our government continues to work on shifting policies to recognize the inherent right of self-government for first nations, Inuit and Métis. That means moving to novel models of indigenous government and supporting indigenous communities to assert their rights.
We are working to support first nations to opt out of sections of the Indian Act in areas such as land, environment, resource management and elections. As an example, we're working with indigenous institutions in first nations to develop the tools they need to drive local economic development, empower their communities and promote prosperity.
Since 2019, nine first nations have begun operating under their community-ratified land codes through the framework agreement on first nations land management and the First Nations Land Management Act. In addition, 18 first nations have joined the 264 other first nations asserting jurisdiction in the area of fiscal governance by opting into the First Nations Fiscal Management Act.
Self-determination is key to unlocking economic potential, creating opportunities for growth and closing socio-economic gaps. We know that with advancing self-determination, the potential for success is enormous—success of indigenous peoples and, frankly, all of Canada.
To get there, we need to understand that recognizing and affirming rights is a first step in finding a way forward. We need to support indigenous partners to identify our challenges and then we need to rise to those challenges. Finally, we need to recognize that the most important actions we can take are to listen to the hard truths, embrace change and welcome creative ideas. A transformation like that will take determination, persistence, patience and truth telling.
The work ahead of us will be difficult. As I mentioned, this path will require a lot from us. We will have to work in true partnership and listen, even when the truth will be hard to hear. We will have to continue to communicate, even when we disagree. We will need to continue to collaborate and look for creative ways to move forward, as well as new paths to healing and true understanding.
We've all seen what happens when we fail to maintain dialogue. This leads to mistrust and confusion, which can cause conflict and hinder our common journey. I want to be clear: it is up to the rights holders to determine who speaks for them about their indigenous rights and title. We will continue to work toward continuing these conversations. Despite all these challenges, I know that the hard work ahead of us is well worth the effort.
Together, we can build a better Canada, and that's what we're going to do. It will be a country in which healthy, prosperous and self-reliant indigenous nations will be key partners. We have the opportunity to learn from our shared history, to share our pain and even our joy, and to do the work that will result in a country where everyone can succeed.
I look forward to working with my colleagues on all sides to realize this essential work and enormous potential. It requires the participation of all Canadians.
I look forward to answering any questions you may have.
I think you are familiar, Jaime, with some of the hereditary structures that exist in Mi'kmaq communities and some of the challenges that have been faced there with respect to elected band councils and, in fact, with some of the progress that has been made. It is absolutely uneven throughout the country
I think, as Carolyn summarized, some progress has been made out west in starting to create the basis for engagement with hereditary leadership. In the country, the Indian Act-imposed band council system is viewed in many indigenous communities as colonialist and paternalistic. It has removed, and the Government of Canada has consciously contributed to remove, structures that existed well before the existence of Canada that are highly democratic in nature and have a very rich history.
As a country and as a nation that wants to move forward with what we call reconciliation, we cannot ignore those voices, conscious of the fact that at times the government, as I mentioned earlier, has been deliberate in dismantling those structures. In some cases we have had very little engagement, if any. I, myself, have been involved in opening dialogues with the Haudenosaunee Confederacy. They are modest. They tend to be not in the public sphere. But there is a lot of work to be done. There is an immense amount of complexity in that relationship because we're talking about many nations that cross the U.S. border as well. It is something that has created within certain communities, in fact, the crisis of legitimacy. This isn't to say that elected band councils are not fierce defenders of their communities. They are. It just has created a reality where there is sometimes a perceived sense of illegitimacy that has contributed to frustrate not only the relationship but the ability to work in partnership. It is something that we are realizing, probably more slowly than we should, but we are realizing it and we need to address fundamental issues that Carolyn had to face over a four-day period with respect to lands and title that had been recognized in the Delgamuukw decision. Simply saying to yourself that you're only going to engage with this particular band council because it suits your needs is highly utilitarian in thinking and not the right way to approach things.
There are some communities that are entirely comfortable with an elected system, and there are some communities that wish to do a different job and move forward. That's why we have all those instruments that I named in my opening remarks. For some communities, that doesn't work and we have to realize that and get creative and see how we come together. This will all contribute to stability, good governance and respect for the relationship, which is perhaps the element of respect and truth that is missing. But I think it is the right way to advance the nation. It can be complicated. It can be messy. But we can't sit here and say we're going to go dictate the terms on which we engage, whether it's rights recognition frameworks or otherwise. We have to realize that in some communities and some nations there is a treaty-based relationship that communities are demanding to be respected and in others there's a much older and some others a much newer relationship.
There is an immense amount of nuance, and I think you hit the nail on the head in asking that question, Jaime, because it goes to the complex nature of that relationship and the steps we need to take to move forward.
We are going to share our speaking time.
As you know, Ms. Bérubé, the Royal Commission on Aboriginal Peoples was a product of the Oka crisis. There were a lot of lessons to be learned as a result of this huge inquiry by the commission, lessons that were not necessarily followed, for example, with regard to land purchases. I am not telling you that this is a simplistic analysis, because it is a very profound reflection. Many of the recommendations were not followed. There have been times when the government's commitment has fallen short, admittedly, and that has happened in every respect.
The splitting of the former department into our two current departments is precisely because of the recommendations of the Royal Commission on Aboriginal Peoples, a split that did not take place at that time, but more than 20 years later. That is the same lesson we learned from the Delgamuukw decision. In the wake of the Okanagan crisis, we realized, as Quebeckers and Canadians, that there is a real tension, which has a legitimate basis that dates back long before the very creation of Canada, with respect to the participation of the armed forces. It is a scar that remains open within these communities.
We often talk about the economic repercussions that persist on the economies of Quebec and Canada, and it must be emphasized. On the other hand, the greatest impacts, proportionately, have been felt in Kahnawake and Kanesatake, an underdevelopment that has persisted and continues to this day.
We have seen the prejudice and bias that followed resurface, whether in the media or in comments posted on Facebook. These were the same comments that were made after the Oka crisis. There was the death of the corporal appointed following the intervention of the Sûreté du Québec, or SQ. There was also the death of a man who was leaving Kahnawake when a rock was thrown against his window. He had a heart attack and he died from it.
These are things we need to think about as a society. I dare to believe that there have been changes as a result of the Ipperwash crisis. In Ontario, there has been a reform of police practices and indigenous engagement within the police force, which is a response to that cultural sensitivity and the demands that have been around for a very long time. Is there more work to be done? I would say very humbly yes.
Thank you for the opportunity to speak with you.
The issues I want to raise have to do with the application of indigenous law. I'm grateful for understanding that aboriginal title is the issue that lies at the heart of our current disputes out here in British Columbia and that the recognition of title belongs with the rights-entitled holders, who are the hereditary chiefs. What's required, of course, is the recognition of that title and then the jurisdiction to be able to implement what's involved in the content of that title.
When that jurisdiction is recognized, that includes Wet'suwet'en law and the internal dispute resolution structures that they can bring to bear to deal with the challenges they face between the elected and the hereditary councils. I'm sure you'll hear more about that as we go along.
This is to make the point that this is law, and this law is recognized in the Constitution.
The other things we need are, of course, the inter-societal recognition mechanisms, things like section 35 and the sui generis approach that's there; UNDRIP and the statutory action that the government can take to recognize rights and title as an economic development and sustainability issue; needing to reform the way injunctions are done; and thinking about rule of law in the broad way.
However, my main contribution is to try to bring to bear a law from the Anishinabe. I'm from Cape Croker, which is a reserve on the south shores of Georgian Bay on the Bruce Peninsula. The Wiikwemkoong reserve, for instance, has a constitution, and in that constitution they talk about how their laws should be applied to deal with the questions that come before them. These laws are organized as the Seven Grandmother and Grandfather Teachings. I just want to read them to you for your consideration, so you can think about using these kinds of approaches in resolving the disputes that we're all so concerned about.
The first law is the law of respect, which is to “accept people for who they are”. It says in the constitution, “listen openly to other opinions and be sensitive towards people's feelings. Also respect all living creatures, and Mother Earth.” Imagine that law as a standard, principle, criteria, authority, precedent, tradition, guidepost and signpost for regulating our affairs and resolving our disputes.
There's humility. “Strive to become a modest person.”
There's truth. “Be a trustworthy individual. Discuss only factual information, and in turn, seek out knowledge that is accurate.”
These are constitutional principles.
There's bravery and courage. The constitution says, “Take responsibility for your mistakes, and meet unknown circumstances head on. Be a risk taker, and do not let short falls discourage you.”
There's love. “Show affection and fondness for those around you.” Imagine that being a part of the way we go about resolving our disputes, constitutionally speaking. “Allow your friends and family to know you adore them unconditionally. Most importantly, love yourself.”
There's honesty. “Be upfront about everything that you say and do. Your words and your actions should not have a hidden agenda or motive.”
Then the seventh grandfather/grandmother rule here is wisdom, which is: “Be wise and gain knowledge through life experiences. Furthermore, learn from your mistakes. Expand your wisdom to include teachings from elders and children.”
These are principles that are akin to life, liberty and security, peace, order and good government. They are, of course, general. They are aspirational, as are hopes for equality and mobility and freedom in Canada's Constitution.
What I suggest is that, as a part of the law of Canada, we draw upon these kinds of principles and make them the standards by which we conduct our business. These can be given meaning in specific terms and in statutes—as with this constitution—and in court judgments. They can also be the way we comport ourselves.
Here at the University of Victoria, we're teaching indigenous law alongside the common law. We have a “JD” and a “JID” degree—a juris doctor and juris indigenarum doctorate. Also, the students here are learning transsystemically. When I teach constitutional law, they're learning about federalism, the Charter of Rights and Freedoms and aboriginal and treaty rights, but at the same time they're also learning about Anishinabe law all along the way.
The same thing happens when they learn criminal law; they learn Cree law in relation to that. When they learn about property law, they learn about Gitxsan law. Tsilhqot'in law is combined with contract law. Hul'q'umi'num or Cowichan Law is combined with tort law.
We are a multi-juridical country. We have many legal traditions to draw upon that can be authoritative in guiding our actions, and these principles of respect and humility, truth, bravery, love, honesty and wisdom contain guidance in the etymology of the words. For instance, the word “love”, zaagidiwin, comes from a river mouth. We learn about how to live in love by looking at what happens at a river mouth that is enriching the earth, and the standards by which we should live are honesty, gwayakwaadiziwin, which is having a clear path between us, no obstruction when we're talking with one another, or humility, dibaadendiziwin, which is to measure our thoughts in a precise way. The idea of respect, manaaj'idiwin, is to go easy on one another. The notion of wisdom is nanagadawenda/nibwaakaawin, which is to bend toward or study things.
These are Canadian laws. These are laws of the land, and the Wet'suwet'en have laws they could express that have similar sorts of principles attached to them. So do the Blackfoot and the Salish, the Mi'kmaq, the Inuit, the Métis and the Haida, any group you look at have these laws written and unwritten, so it is important to talk about title and jurisdiction and internal dispute resolutions and inter-societal dispute resolution mechanisms, but understand that a part of what will give those life is indigenous understanding of law.
I look forward to further questions or comments that you might have about that.
There is lots to say, but I hope I have made the point about indigenous law being a part of a resource for reasoning and action in our country.
Thank you for allowing me to testify, even though I couldn't appear in person. I am currently in the community of the Uashat mak Mani-Utenam Nation on the North Shore of Quebec. Long live technology!
I'm not going to go back over the facts of the indigenous crisis. You know them well enough. As an expert in indigenous law and policy, I will focus primarily on what I understand about the causes of the crisis and what I see as lessons we can learn from it.
First of all, the crisis is the culmination of several issues related to first nations territories and political governance. There are, of course, issues specific to the Wet'suwet'en Nation and those related to the Coastal GasLink project in particular. The crisis has become so acute because the issues go well beyond hereditary chiefs' opposition to a pipeline project. Moreover, it is not by chance that the crisis has had such resonance in Quebec and that there have been such important gestures of support from first nations in Quebec, particularly from the Mohawks and Micmacs, but also from the Atikamekw, Innu, Algonquins and many others.
The situation in Quebec is very similar to that in British Columbia. These are two regions where there is no, or at least few, historic surrender treaties. So there are large areas of what are referred to as unceded indigenous territories over which first nations have rights, but rights that are not fully recognized by governments or the courts. These are what I call invisible rights: indigenous rights, indigenous title, the inherent right of self-government, the right to be consulted and accommodated, the right to fiduciary protection by the Crown, and so on.
It's not because they are invisible that they don't exist, but because they are invisible, they are often ignored. In the course I teach at the Faculty of Law of the Université de Montréal, "Canadian Law and Indigenous Peoples", I always begin my first class with a drawing of my own, which is a pictorial representation of Canadian indigenous law. Here is my drawing.
You see a rectangle that symbolizes Canadian law and a circle that identifies the normative orders of indigenous peoples. This circle overlaps in part, but not completely, with positive Canadian law: there are rights that are sometimes recognized and others that are not. That's what Mr. Borrows was talking about in terms of indigenous rights, the normative orders of indigenous peoples that existed and have continued to exist in Canada.
The chart explains what is known as legal pluralism, which is present in indigenous law in Canada, and it also explains some of the issues related to the crisis and the complexity of the solutions. Indigenous peoples, because they have not been conquered, because they have not given up their inherent rights, despite the considerable efforts made during generations of colonial policy, still possess, to different degrees, depending on the nation, parts of their legal order that existed before the creation of Canada. This is true for those who have entered into treaties and even more so for those who have not, as is the case in Quebec and British Columbia in particular.
These rights have been recognized in part by the courts, which are trying, as best they can, to reconcile the pre-existing sovereignty of indigenous nations with the current sovereignty of the Crown. However, the concepts created remain vague and imprecise. In short, they often remain invisible to the current political system. This is the fundamental problem. Faced with the difficulty of resolving problems through political means, first nations are forced to turn to the courts or blockade railroads.
You have to realize that the courts are not a panacea. It is often very long, very expensive and very risky. Even when the first nation wins its case in court, it does not necessarily represent a victory. Take the case of the Wet'suwet'en Nation, one of the two nations involved in the famous 1997 Delgamuukw decision.
The decision was heralded as a great victory for indigenous people, as the court recognized the existence and scope of indigenous title to unceded indigenous lands. However, the court refused to decide the case, inviting governments to negotiate or first nations to return to the trial court to prove title again.
You'd certainly think we wouldn't be here today if the negotiation route had worked better. We can't blame the courts. The recognition and definition of these invisible rights was left to the Supreme Court, if not clarified at the political level, as the federal government had promised to do when the Constitution was patriated in 1982 and section 35 was included, which recognizes indigenous rights without defining them.
In fact, there are several people these days who are proposing new constitutional amendments to correct this situation. There have indeed been a few so-called modern treaties that have been concluded since the Supreme Court reminded the government in 1973, in the Calder case, that indigenous rights were not inert fossils.
Yes, there have been some treaties, but not many. The Wet'suwet'en situation is hardly unique. There are a number of similar situations, especially in British Columbia, Quebec and the Maritimes, involving unceded traditional territories in which these invisible rights exist.
Admittedly, as things stand, treaty making is extremely difficult, if not impossible, for many nations. The current framework for negotiations is inadequate and ineffective. First, the current policy on the settlement of comprehensive claims has an enormous disadvantage: the federal government is both judge and jury. The process is also very long and fraught with pitfalls. To give you an idea of the situation, some nations have been in negotiations for over 40 years.
Meanwhile, the territories continue to be developed. The duty to negotiate and accommodate does indeed exist. The duty was established by the Supreme Court in 2004 in a case involving the Haida Nation. However, this duty is yet another vague and unclear concept that causes a great deal of frustration, among both indigenous people and proponents, by the way. They complain about being caught between a rock and a hard place.
Admittedly, the governments don't have much motivation to negotiate for the recognition of rights. We can't rely too much on pressure from the courts, contrary to what we might think. While the courts recognize indigenous rights, and despite the constitutional protection granted in 1982, they've also ensured that these rights aren't absolute and that governments could violate them. The Supreme Court established criteria to justify the infringement of rights, even formally recognized aboriginal title. This gives governments a way to keep denying these invisible rights.
While recognizing the existence of aboriginal title, the Supreme Court also gave indigenous communities the burden of proving their previous occupation of their traditional territories. This proof is extraordinarily difficult and costly to produce. Only one indigenous nation has been able to provide this type of proof. That was in 2014, and the case concluded before the Supreme Court with the confirmation of the Tsilhqot'in Nation's aboriginal title to approximately 5% of its traditional territory.
What action can be taken by first nations that have invisible rights, but that can't have these rights recognized by the courts or participate in treaty negotiations? For now, they can only require that they be consulted. Again, they're reminded that they don't have a veto. If they aren't satisfied with the consultation, they can go to court. However, if they aren't satisfied with the courts, what's left? This is our impasse.
In my view, the indigenous crisis is the direct result of the governments' failure to recognize invisible rights, which are nonetheless real, and to address the historic grievances of first nations that have never surrendered or given up their land rights.
These land claims can't be resolved until the negotiation mechanisms have been fundamentally changed. After many years of frustrating negotiation experiences, I believe that the solution to the current impasse lies in a mechanism that remains separate from governments. The issue is systemic. In other words, the current system can't resolve these issues, which are so complex that they even go beyond the capacity of governments. These types of issues can't be resolved by public servants, who must comply with policies, directives and administrative procedures. I believe that a new institution, separate from governments, should be responsible for clarifying and implementing the rights of first nations. This independent body should be composed of individuals who have the necessary expertise and legitimacy to accomplish this sensitive and very important task.
One of the first things to change is probably the vocabulary used. We don't refer to claims, a confusing term that suggests that indigenous groups want new rights. As I said, these rights are existing rights for which they're seeking formal recognition. We should instead be talking about a rights recognition policy. This solution would also be a concrete step towards implementing the United Nations Declaration on the Rights of Indigenous Peoples, which Canada officially supported.
In conclusion, I'll say a few words about the uncertainty that the crisis has caused among project proponents, particularly with regard to the authorities that have the jurisdiction to negotiate development agreements. Of course, companies and the government are turning to elected band councils. We must remember that these councils are currently trying to do everything they can with the means at their disposal to improve the lives of their communities. That said, this issue is another debate.
As I said earlier, a number of nations still have traditional authorities. In a few cases, the courts have also recognized the legitimacy of these traditional authorities, such as in the case of the Wet'suwet'en in 1997. The federal government's responsibility is useful, even fundamental, in this area. The federal government must ensure that the process respects the rights of the indigenous group concerned.
Rather than encouraging the division of indigenous communities, we should be giving the communities the necessary resources to create institutions designed according to their own legal perspective. This will enable them to make legitimate decisions that are more likely to be respected by everyone.
To do this, the political route must also be taken. It's not necessary to enter into an agreement, because the right to self-government is an inherent right. However, it's more useful to enter into self-government agreements. Otherwise, situations arise such as the one involving the Mohawks of Kahnawake. They've implemented a form of de facto sovereignty over their territory. That's one reason why the blockade couldn't be cleared through a simple court injunction.
Again, the current system makes it very difficult to enter into agreements and recognize self-government.
In short, creativity and courage are now needed in order to take concrete steps towards putting words into action. Otherwise, reconciliation will remain wishful thinking. The words “nation-to-nation relationship” will become meaningless, and these types of crises will happen again.
On that positive note, thank you.
First, I would like to thank the Algonquin for allowing us to do business on their territory. Also, thank you to the committee for having me here today.
My name is Theresa Tait Day. My hereditary name is Wi'hali'yte. I'm the fourth generation in my family to hold this name. As a hereditary sub-chief of the House Beside the Fire, Kun Beghyukh, of the Laksilyu or Small Frog Clan, I have been involved in the governance of the Wet'suwet'en for many years. I sat at the OW table.
My training comes from my grandparents, who were active in the political system for governance rights and title. They were involved in the Calder case and the Delgamuukw-Gisday’wa case, as well as the formation of the Native Brotherhood of B.C. I served as a director of native programs at the Legal Services Society for almost a decade, and I think that's where I met John Borrows a long time ago.
I am the co-founder of the Wet'suwet'en Matrilineal Coalition, with five hereditary chiefs representing the five clans. The Wet'suwet'en Matrilineal Coalition was asked by hereditary chiefs and the community at large to come up with a solution to facilitate decision-making within our nation. We have been working particularly with LNG and Coastal GasLink. Our people wanted a benefit, and they wanted to be able to make a decision on a positive note. However, we've experienced lateral violence and coercion since then by the five chiefs who claim to represent the nation.
I speak on behalf of the WMC—as a hereditary female leader—my fellow hereditary chiefs, band members, our elected band councils, and members of my house group as an appointed sub-chief and designated spokesperson.
With regard to Coastal GasLink and the protesters, our communities came to the world's attention when members of our hereditary chiefs loudly broadcasted their opposition to Coastal GasLink, despite the fact that it has strong community support. These chiefs' voices have been amplified by the skills and the resources of outside environmental activists who say that they support Wet'suwet'en, but whose primary interest is to stop the pipeline.
The protest organizers are conveniently hiding behind our blanket as indigenous people while forcing their policy goals at our expense. This compromises our nation's social well-being and our people's economic future.
They have held up the hereditary chiefs who oppose the pipeline as defenders of traditional governance, leaving the impression that the chief and council are running roughshod over the wishes of the community. It's not that simple. Hereditary chiefs in our communities do not rule alone. They make decisions collectively. They gather in community halls. In these meetings, people are allowed to speak. An effort is made to work toward consensus. At the end of the process, the community and band-elected chiefs inform the hereditary chiefs of the community's message to be shared with the public. This project has been hijacked by the five chiefs.
The hereditary chiefs are representative decision-makers. They are not autocrats. They are told by the community what the decisions are, and that's how we move forward. This is not happening. The band and the community have been left out.
Based on a survey of Witset, the largest community, first nation, in our territory, over 80% of our community say they want LNG to proceed. There is a gap between what people say and what the hereditary chiefs are claiming.
You are being told that these men speak for our nation, but they often fail to understand even the basic traditions. The improper wearing of regalia in protest offends the most progressive traditional leaders. It shows a fundamental disrespect for our customary laws. How can we be governed by these people who don't understand them?
As for the Office of the Wet'suwet'en, it is structured and controlled by its own benefactors, who draw a salary from the operations and manage spending decisions. They are not accountable to our community.
By negotiating directly with the office, Canada and British Columbia legitimize a group of bullies and abusers of women.
Moreover, by refusing to hear from elected councils, these governments have, without merit, prevented the most credible current voices from being heard. The Indian Act system must be reformed, but that does not invalidate the role of the elected councils. While imperfect, they continue to speak for our people until a better model is implemented. That's why I'm here today to appeal to you to create a better model for decision-making.
The women's voices have been suppressed by dissent. As female Wet'suwet'en members and community leaders, we want to be heard and involved in the decision-making. That is our way. But our voices have not been heard. Many of the male hereditary chiefs are acting out of internalized historical oppression. We face patriarchal domination. In a very sick way, the voices of the privileged and non-indigenous protesters are taking precedence over indigenous women. They assert their agenda in solidarity to avoid facing the scrutiny of their policies.
This is both about a pipeline and not about a pipeline. What is happening here determines our process as a nation. A people's wishes have not been heard. I agree with John Borrows that there are beliefs, but in our nation we have been oppressed for 150 years, and we continue to be oppressed under the current regime.
At the draft agreement consultation on February 28, a number of hereditary chiefs attended a meeting prior to the male hereditary chiefs' meeting with the province and the federal cabinet ministers. We met until it was promised that the chiefs would have a community meeting open to the public. Instead, they decided to have these small clan meetings, where 20 people or five people come and make decisions about this. This is not what a democratic system looks like.
The two major issues at hand—the Wet'suwet'en's position on Coastal GasLink, and the role of hereditary chiefs in our governance—are properly left with the Wet'suwet'en. Our communities have been working on these matters for years, and we'll resolve them in our way. As a community, we need to implement a process in which the Wet'suwet'en create a decision-making model, a process for major projects. We need a system that will allow us to work together toward economic reconciliation, job creation and the rebuilding of our nation as well. We need a new model.
The Indian Act targeted us as women, and continued violence targets us as women, both within and outside our communities. While supporting decolonization as part of reconciliation, supporters of indigenous people must also support efforts to combat sexism and the continued oppression of Indian women.
We respectfully demand accountability and procedural fairness from the hereditary chiefs representing the Office of the Wet'suwet'en. We ask the government to help us to provide the resources necessary for our nation to co-develop a path forward for economic reconciliation that is inclusive, democratic, open and fair, as you can see in your government's system. You have this system; we do not have a system of fairness.
We have a way forward. We call for a community-wide meeting and for the protesters to stop misrepresenting the Wet'suwet'en. We are ready for a new system of governance that is inclusive of our nation.
I realize that you've heard a lot of things here today. I agree with John Borrows on the principles, but those principles must be part of our nation's dialogue, and we haven't had the ability to really dialogue with our nation. We don't have a mechanism in place where everybody has a say, and when everybody knows what the topic being discussed is. It has been decided by a group of people without the community and without the nation's input.
We've come to the eleventh hour, when all of a sudden the has come to the table and talked to the five groups of people who have not actually had our permission to do so.
It's the communities that say what should happen, and hereditary chiefs do not act alone. They take direction from the membership. What we are facing, as Wet'suwet'en, is a lack of a mechanism in place whereby everybody would have a say in a democratic, open and fair way.
Currently, under the system of having clan meetings, when you have 20 people at a meeting.... Currently Likhts’amisyu is under Warner Naziel's leadership—who took the name from the rightful owner, Gloria George. He has a meeting, and 20 people say, “Yes, go ahead”. These small meetings do not make a decision for our nation, so I am here to talk to Minister Bennett and ministers to try to create a mechanism where we are all informed and all involved in whatever decision has to be made with respect to our communities. Title and rights exist within Wet'suwet'en. They haven't gone away. These agreements will not change the fact that today my clan and my house can go and protest.
I think the best way forward is for the government to think of how these governance models fit in today's world. We cannot go back 100 years—and, in fact, these meetings are oppressive to our nation. We feel like we are stuck in the 1800s. We need to move forward economically. We need to have the benefits from our land. We need to be able to have equity stakes in our projects that come forward. We need to benefit from them, and we don't have a mechanism in our community to address that particular problem. Title and rights, yes, we need to address that, but we also need a mechanism to make decisions today about these projects that are coming down the pike.
Thanks, Jaime. It's good to see you again as well. That's a great question.
In the Delgamuukw decision, the court decided that there was title that would be recognized in a national group. The content of that title would be fee simple-like. The Tsilhqot'in case showed that there would be beneficial interest in the land that the first nation would exercise. Those activities would not be limited to traditional activities, but would include the surface and the subsurface rights.
The court also made the point that there was an inherent limit on title, that you couldn't destroy it such that future generations could not benefit from it. The Delgamuukw case set the table for the Tsilhqot'in case to recognize this broad interest in a national group, as has been described.
In terms of mechanisms for recognizing that, we don't have to go back just 23 years; we can go back 250 years. The Royal Proclamation of 1763 said that lands would be reserved for Indians until such time as there was an agreement in public to transfer or share those lands with those who would be coming to live amongst them. We have good broad notice 23 years on, 250 years on, that land remains vested with the Indians until such time as there's an agreement that says otherwise. That has not occurred within the territory.
The point, then, is to incentivize the internal dispute resolution mechanisms of the Wet'suwet'en, as Theresa was talking about, to ensure that people within that nation, by their own laws, can make decisions about how those lands can be used and occupied and be responsibly taken care of.
The notion of using indigenous law for these purposes is something that the courts have recognized in a case called Van der Peet. They said “a morally and politically defensible conception of aboriginal rights will incorporate both legal perspectives”, meaning the perspectives of the common law, the Constitution, as well as the perspectives of indigenous peoples.
As you create these intersocietal dispute resolution mechanisms that will incentivize the internal laws of the Wet'suwet'en, you can do that through UNDRIP, which would, through statute, be opportunity to create agreements—as the British Columbia legislation itself recognizes—to facilitate the implementation of those rights.
UNDRIP is an economic development instrument. Sometimes people mistakenly think that it's about blocking development. Rather, it is trying to democratically figure out what free, prior and informed consent means. It's not a veto, but it is the right to say no. If the community says no, then another process has to kick in that ensures that the honour of the Crown is taken care of if free, prior and informed consent is not reached.
The notion of the indigenous peoples' own laws that would inform the intersocietal dispute resolution mechanisms means that indigenous peoples have the right to be free, that is, to be different from other Canadians in their nations in accordance with their laws. They also have the right to be different from one another within their nations, because what law within a nation does is that it allows you to disagree agreeably. What Theresa is asking for is this idea that when people are engaged together, they could disagree agreeably.
I'm going to refer you to the Wiikwemkoong nation constitution in closing here. They have principles of natural justice, which mean, as follows:
that a person has the right to know the allegations being made against them, they have [a right] to defend themselves and that a fair decision will be made taking into account all of the relevant evidence put before the Justice Counsel;
Reasonable Limits not exceeding the limit prescribed by law, not excessive;
Conflict of Interest occurs when an individual organization is involved in multiple interests, one of which could possibly corrupt the motivation for an act in another.
The point I'm making here, by drawing on the seven grandmother and grandfather principles or citing the constitutional provisions around conflict of interest, reasonable limits or principles of natural justice, is that first nations can be incentivized to make decisions that have clarity attached to them.
There will be differences, just as Quebec is different from Alberta, and just as the federal government might have a different opinion from what's happening in the territories. You construct confederations in which you can get answers to those questions that arise from difference, but you need proper procedures and proper principles to do that, and indigenous law is a part of that network.