AAND Committee Meeting

STANDING COMMITTEE ON ABORIGINAL AFFAIRS AND NORTHERN DEVELOPMENT

COMITÉ PERMANENT DES AFFAIRES AUTOCHTONES ET DU DÉVELOPPEMENT DU GRAND NORD

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, November 23, 1999

• 0938

[English]

The Chair (Mrs. Sue Barnes (London West, Lib.)): Good morning and welcome, especially to our three panellists this morning: Mr. Stephen Scott, Mr. Tom Flanagan, and Mr. Bradford Morse.

Before we start with that, colleagues, I want to welcome you back to Ottawa. You heard from 53 witnesses last week. Our clerks have contacted everybody else, and by Thursday at noon we'll be finished hearing from all the witnesses who have agreed to testify.

Before we went on the road, this committee asked to be televised in Ottawa or video conferenced for those witnesses who could not come to Ottawa. I, as chair, had our clerk request the televised room, which we now have. Unfortunately this room is not available for television tomorrow or Thursday, so we have requested another two rooms in the House, but they need House orders to be televised from. Since you've already shown me that you want to televise, we will now put this motion in front of you. I'll have the clerk read it, please.

The Clerk of the Committee: The motion is that the Standing Committee on Aboriginal Affairs and Northern Development seek permission from the House to televise its meetings on Wednesday, November 24, in the afternoon, and Thursday, November 25, in the morning, for its study on Bill C-9, an act to give effect to the Nisga'a Final Agreement.

The Chair: Again, because we'll be having our hearings in rooms 237-C and 269 in West Block, we need this. I know it's a formality, and I don't think there are any problems, but I need you to give approval to this motion so that we can technically put it before the House leaders.

(Motion agreed to)

The Chair: Thank you very much.

We'll go on to the order of the day, which is a continuation of our work related to Bill C-9, an act to give effect to the Nisga'a Final Agreement.

• 0940

Now, we have professors from both McGill University and the University of Ottawa with us. Professor Stephen Scott and Professor Tom Flanagan from McGill University, and from the University of Ottawa, Bradford Morse, who is a professor in the Faculty of Law.

Mr. Scott, would you like to go first?

Professor Stephen Scott (Faculty of Law, McGill University): Thank you, Madam Chairman.

When originally invited to attend today, I had the impression that I was to participate in a round table, and I accepted with the hope and expectation of learning rather than informing, since the aboriginal affairs dossier is one that, unfortunately, I have not had time to follow in recent years.

A few days ago I learned I would address the committee formally. I have read the first reading text of Bill C-9 of the present session, an act to give effect to the Nisga'a Final Agreement, and also some parts of the final agreement itself as well as some background papers. Perhaps I may, with diffidence, permit myself to share with you a few impressions. These fall broadly under the headings of historic justice, centrifugal forces in the government of the federation, and the rule of law.

First, historic justice: As far as land rights are concerned, my impression is that the rights given to the Nisga'a are not inordinate in a broad historic context. It seems to me idle to lead a charge against this settlement, trumpeting the principle of equality, important though it is. Equality does not mean that someone whose property has been taken should not be compensated, quite the contrary.

Too often in our history the aboriginal peoples have been despoiled of land and denied even basic civil liberties such as freedom of religion and the use of their languages. One man's revealed religious truth is another man's superstition. The imposition of Judeo-Christian religious beliefs by missionaries, with the assistance of the state, in schools and elsewhere, has been breathtaking in its insolence.

The same can be said of the suppression of use of native languages and cultural activities by law, such as the Potlatch Act. These have been denials of rights properly belonging to all Canadians.

Second, centrifugal forces in the government of the federation: There is no more complex challenge than ensuring that aboriginal peoples can maintain something of their traditions while attaining economic standards comparable to the population as a whole. It is clear to me this can only be achieved if the country as a whole is economically competitive, and government must be effective if this is to be achieved.

Canada's declining competitiveness has in recent decades been reflected, for example, in the value of our currency. At the best of times, the centrifugal forces are so great that this country is virtually ungovernable. I think this has much to do with our economic problems. In the Balkans they speak of Canadianization. For the future we must see to it that the aboriginal people share wealth, not poverty.

I believe it is in the interests of the whole population of Canada, including the aboriginal peoples, that aboriginal self-government be achieved by means analogous to municipal self-government, but under federal legislative authority rather than through the creation of an entirely new constitutionally entrenched level of government, with large numbers of constitutionally established mini-states. It is surely no disgrace to occupy a position analogous, for example, to Toronto, but under federal jurisdiction.

While the governmental arrangements provided for in the final agreement may in general be an acceptable starting point, they must in my view be subject to alteration by the Parliament of Canada from time to time. It is not clear how far the governmental arrangements, as opposed to the land rights, provided for in the final agreement will become constitutionally entrenched under subsections 35(1) and 35(3) of the Constitution Act, 1982. It is clear from clause 2 of the bill that some measure of constitutional entrenchment of the agreement is desired and expected and, I think, will be achieved.

I note, for example, the declaration made by section 8 of chapter 2, “General Provisions”, in the final agreement—that the agreement does not alter the Constitution of Canada, including inter alia the distribution of powers. Yet many provisions of the agreement give priority to Nisga'a laws over federal and provincial laws. Clause 6 of Bill C-9 purports to give priority to the final agreement over any federal or provincial law, including this act itself.

• 0945

I think it should be made clear that once passed and assented to, Bill C-9 will not become an unrepealable act. I would add the following clause:

For the avoidance of doubt, it is declared that this Act is enacted without prejudice to the legislative authority of the Parliament of Canada, and may accordingly be amended, repealed, or altered by the Parliament of Canada; but no such Act may take, or permit the taking of, or otherwise affect title to or enjoyment of, aboriginal land, in any manner which would not have been lawful had this section not been enacted; and this section shall be inseverable from this Act.

Our present century has seen even great states degenerate into barbarism. Small communities are inherently vulnerable in terms of maintaining constitutional government. Events in Newfoundland in August 1838 illustrate this perfectly: An altercation in the streets of St. John's between a member of the House, John Kent, and a surgeon, Dr. Edward Kielley, led to the latter's arrest on a charge of breach of the privileges of the House; his committal by the House; his release by a judge of the Supreme Court, Mr. Justice Lilly; the arrest on orders of the House, not only of Dr. Kielley but also of the high sheriff and Mr. Justice Lilly himself, who, whilst in performance of his duties, was dragged out of his chambers through the streets of St. John's; and ultimately, the prorogation of the legislature by the governor to put an end to these proceedings. Litigation from these events led to a major Privy Council decision.

This example surely is no reflection on aboriginal capacity for self-government, but it is why I think that just like local governments, small polities like aboriginal communities should remain under the sovereign authority of a senior level of government.

Third is the rule of law. Given the unsatisfactory and sometimes scandalous record of senior levels of government in this regard, I am concerned at what seems inadequate provision in the agreement and in Bill C-9 to ensure the continuing integrity and preservation of legislative and administrative archives of the Nisga'a government and, indeed, the lack of obligatory provisions for publication of legislative and executive acts.

In Bill C-9 itself, the Parliament of Canada has set the worst possible example, since the final agreement, and related instruments, although they are to be separately published, are not annexed to the bill itself. In practical terms, the final agreement and other instruments will often be unavailable to users of Canadian statutes in Canada and abroad, even though, by chapter 4, the agreement is given force of law and, by chapter 5, binds third parties and can be relied on by them.

This is a travesty of the rule of law and a total disgrace. I feel so strongly about this as to think that no responsible member of either house could vote for Bill C-9, at least until it is amended to annex the final agreement to the bill—and, I think, the related agreements too.

Thank you, Madam Chairman.

The Chair: Thank you very much.

We'll go with you, Mr. Flanagan, whenever you're ready, sir.

Professor Tom Flanagan (Seagram Visiting Professor of Canadian Studies, McGill University): Thank you, Madam Chairman.

If I could just clarify one point, I'm visiting at McGill this fall. My normal position is professor of political science at the University of Calgary, and I will be returning there in January.

By now I'm sure you've heard many detailed analyses of the Nisga'a treaty from proponents and opponents alike. I would like today to put the treaty in a larger context. A wider view is required because the Nisga'a treaty, if approved, will become a model not only for dozens of future agreements in British Columbia, but also, I believe, for renegotiation of existing treaties in other provinces across Canada.

Advocates of the Nisga'a treaty say it is only the long-delayed culmination of Canada's policy of negotiating treaties with all aboriginal peoples. Although I understand and respect that argument, I think it is misapplied in the context of modern British Columbia, where the Nisga'a treaty constitutes a novel and unwarranted departure from Canada's historical traditions of treaty-making.

Five differences between the setting of earlier treaties and the circumstances of contemporary British Columbia are particularly important.

First, earlier treaties were signed when settlement had barely begun and the white population was minuscule. Because white settlers had not yet acquired property rights to land, timber, minerals, fish, and other resources, it was possible to set aside substantial land reserves for Indians without overturning the legitimate expectations of the settlers.

• 0950

But British Columbia today has a population of almost 4 million people, and many of the province's natural resources have already been committed through various licences, tenures, and titles. Extension of the Nisga'a model across the province will not be possible without overturning some of these rights, with the consequent need for expensive compensation.

Second, aboriginal populations were small when earlier treaties were signed, making it possible to allocate land reserves without provoking serious conflicts between tribes and bands. This condition, as well as the first, still largely prevailed when modern land claims agreements were negotiated in the Yukon and Northwest Territories.

In contrast, there are well over 100,000 aboriginal people in modern-day British Columbia, and many of their claims overlap. The Nisga'a treaty is being challenged in court by the Gitanyow people, even as the treaty lies before you for approval. As the process continues, such conflicts will become more frequent.

Third, the aboriginal signatories to earlier treaties had not yet received significant benefits from the crown. The land, money, and other benefits conferred by the treaties were understood to be compensation for the property rights that they were now surrendering through the treaties.

In contrast, aboriginal people in British Columbia have had land reserves for over a century. Over this period, they have also received all the benefits conferred by the federal government upon status Indians, by policy as well as by legislation, including exemption from taxation, medical care, free primary and secondary education, financial assistance for attending post-secondary institutions, economic development programs, and subsidized housing.

To offer additional large benefits of cash, land, and natural resource rights to British Columbia Indians at this point in time will inevitably create a demand for similar treatment by aboriginal people in other provinces. Then the Nisga'a treaty will become, if not a template, certainly a precedent for the whole nation, not just for British Columbia.

Fourth, the earlier treaties were not understood to be an unchangeable part of the Canadian Constitution. Parliament could make modifications as circumstances changed. A striking example of such change is the legislative adoption in 1930 of the natural resource transfer agreements, which modified, and in some ways enhanced, Indian hunting and fishing rights in the three prairie provinces.

Since that time, however, section 35 of the Constitution Act, 1982 has recognized and affirmed existing aboriginal and treaty rights. Agreements such as the Nisga'a treaty may be almost impossible to change in the future, except—and this is critically important—through judicial interpretation.

We have recently seen how an adventurous reading by the Supreme Court of Canada of the Mi'kmaq treaties brought havoc in the Atlantic fisheries. Does Parliament now want to abandon even more of its authority to the courts by approving the Nisga'a treaty?

If I could depart from my prepared text for a moment, I will just say that I was struck by Professor Scott's difficulties in analysing the draft bill and relating that to section 35. We really don't know at this point all the implications of section 35 on contemporary land claims agreements, except that it will certainly make it very difficult, if not impossible, to change these in the future through conventional means, leaving judicial interpretation as the main avenue for future change.

Fifth and most important, the earlier treaties were understood to be transitional agreements. Their purpose was to assist aboriginal people in adopting the civilized mode of life. The treaties gave them land on which to live, agricultural and other forms of economic assistance, and schools to instruct them in the practices of western civilization. The eventual aim, clearly stated in the Indian Act, was not to turn Canada into a multinational confederation, but to enfranchise aboriginal people as individuals. It was envisioned that they would one day own private property, enter into contracts, vote and run for political office, and, in general, live Canadian life under the same laws as other British subjects do.

The Nisga'a treaty, in contrast, establishes a regime of permanent separate and special status. Canadian taxpayers will continue to pay the bills through the fiscal transfers that the treaty provides no timetable for ending. Meanwhile, the Nisga'a political elite will administer the collectively owned land and resources, run a constitutionally entrenched system of local government, and engage in endless profitable negotiations with other levels of government. It is a formula for enriching the elite but impoverishing ordinary people.

• 0955

The Chair: Thank you very much, Professor Flanagan.

Professor Morse, please go ahead when you're ready.

Professor Bradford W. Morse (Faculty of Law, University of Ottawa): I have a slightly different perspective. I thought we were going to have more of a round table, but perhaps it will be sparked by slightly different views among the presenters this morning.

The Chair: Perhaps I'll just clarify. Patrick Monahan and Peter Hogg are joining us by video conference over their lunch hours. So we'll be hearing from two other people who would have made up the morning round table.

Go ahead. Thank you.

Prof. Bradford Morse: It is truly a great honour to be invited by the committee to appear before you today. Let me congratulate you on the important consultations you've already undertaken, including the hearings in British Columbia last week. I believe you are now involved in the most meaningful assignment of this parliamentary session, and perhaps the one you will look back on at the end of your political careers as the most significant achievement, in helping to build this great country.

Being here today and looking up at the painting of the Fathers of Confederation adds to making this a very humbling experience. I follow in the footsteps of so many people, particularly so many distinguished representatives of the Nisga'a Nation, who have devoted such an amazing amount of energy and dedication for decades to achieving justice in the traditional Canadian fashion, through peaceful negotiations.

Over 112 years ago, the leaders of the Nisga'a Nation went to Victoria, British Columbia, to engage the provincial government in treaty negotiations. They were in effect seeking to join the circle of Confederation, but were turned away from the doors of the legislature.

They petitioned the king and his Privy Council in England 86 years ago, to seek royal intervention to encourage treaty discussions, but again with no success. They repeatedly attempted to prod the federal government to start treaty talks over the last century. However, it too consistently refused, as it had really no interest in acquiring the lands of the Nisga'a for the benefit of the province, without provincial participation.

The unwillingness of our governments and our citizens to confront the reality that it was Nisga'a land to which we had no lawful claim, without having achieved a treaty relationship with them, did not stop us from seizing large parts of their traditional territory and exploiting it for economic gain.

The Nisga'a Nation have consistently acted with honour and dignity, as possessors of a rich culture and history. They have also conducted themselves throughout in the finest tradition of Canadians, as they've sought to achieve fair and just results for all, through quiet, peaceful diplomacy and negotiations.

Isn't it ironic that as Canadians we prize these values so highly and like to think they're part of our national resources, even if not natural ones, yet they've been demonstrated so rarely in relation to the Nisga'a Nation by our federal and provincial governments over the many years? The Nisga'a Nation were compelled to go to the Canadian courts to have the existing law reaffirmed, in the famous Calder case of 1973.

The court unanimously confirmed that aboriginal title was and had always been part of the common law doctrine that had formed the foundation for most of Canadian law. But although the court was split on the continued existence of title for the Nisga'a, the Nisga'a Nation had to wait for a further 18 years for the province to agree to come to the table before they could commence effective negotiations.

It must have been extraordinarily frustrating at a human level for Nisga'a leaders like Frank Calder to go to the great expense, effort and risk of litigating their rights all the way to the Supreme Court of Canada, resulting in a fundamental shift in Canadian law and policy toward first nations, yet receive no direct benefit. Thus they had to stand by and watch new treaties being negotiated in northern Quebec, the western Arctic, the eastern Arctic, the Yukon, and the Mackenzie Valley. All that time they waited patiently, while reminding the people of Canada, and particularly of British Columbia, of the unfinished business that continued.

• 1000

How tragic as well that so many Nisga'a leaders, such as James Gosnell and others, have not lived long enough to see first an agreement in principle and then a treaty be reached, to see it ratified by the Nisga'a, by the Legislature of British Columbia, and now be before the Parliament of Canada for approval.

On the other hand, some of the outrageous accusations, myths and falsehoods that have been spread by some—and I stress that it's only by some—of the critics must give rise to great personal pain within anyone who has devoted a considerable part of their life to achieving what they regard to be a just resolution of this long-standing violation of human rights.

While I'm not a member of the Nisga'a Nation, nor have I ever worked for them, I'm still distressed to see some of the comments made by Canadians that are really quite cruel and crude and, frankly, racist, when they're voiced in reference to the Nisga'a. There are genuine criticisms I have no disagreement with. I think we should have a debate, and a healthy debate, but much of what has been said also is just fundamentally un-Canadian in the worst possible way.

Genuine criticism is always welcome when it's intended to be constructive in nature and delivered in good faith with an honest spirit. Unfortunately, I fear that too much of what has passed for criticism against this treaty stems from anger and prejudice.

Let me just take the few moments I have left of what has been alloted to me to address what I think have been a few of the untruths that are far too regularly voiced.

One is that there is taxation without representation. That's clearly untrue, and untrue both in reference to the Nisga'a and non-Nisga'a. The Nisga'a will pay taxes to federal, provincial and Nisga'a governments by virtue of paragraph 1 of chapter 16 of the agreement. Non-Nisga'a people in the area will pay taxes to federal, provincial and the current regional government arrangement or any successor public regional government arrangement, but not to the Nisga'a government, under paragraph 2 of chapter 16.

Secondly, the treaty treats people differently based on race. Fundamentally, this is about racial distinction or discrimination. I would suggest that's also untrue. The fundamental issue that many critics fail to grasp is that aboriginal rights are not recognized as a distinct group by virtue of their race, but rather, as the United States Supreme Court has clearly and repeatedly indicated for at least 170 years, certain peoples were in possession of their territory since time immemorial as independent nations with their own legal, cultural, religious, linguistic, and political systems such that their unique legal position today, including their assertion of their right to self-determination, is reflective of their difference as political entities, not as racial groups.

The third matter is that the agreement or the legislation itself undermines the Canadian Charter of Rights and Freedoms. I think that's also untrue. It's ironic to see people make this claim when they often appear to be the same people who frequently attack the charter itself for having extended too much power to our judges to overturn laws passed by elected representatives. But the treaty itself specifically states that the charter applies in paragraph 9 of chapter 2, and the preamble to Bill C-9 before you confirms this fact.

It's been suggested, including this morning, that once Bill C-9 is passed it will be too late to ever make any changes. That's untrue. The treaty does contain an amending formula. The Canadian Constitution itself has an amending formula, and neither of these are easy to use, nor should they be. If we're accepting that this is a fundamental agreement, then it shouldn't be something that is lightly changed, and of course the Canadian courts will have an ultimate say in how the treaty is interpreted and applied in the future as well as regarding the legality of the treaty, Bill C-9, and how it fits in relation to the Constitution as a whole.

It seems to me that we are on the brink of a new century, indeed a new millennium, and the last 500 years in the Americas have been filled with oppression, colonialism, racism and misguided visions of superiority. I can think of no better end-of-year gift to Canadians, or for that matter from Canadians to the rest of the world, than to see this treaty, albeit achieved through arduous tough negotiations filled with compromises that I'm sure have made no party entirely happy, proclaimed in the less than poetically stirring words of subclause 4(1) of the bill: “is approved, given effect and declared valid and has the force of law.”

• 1005

To transform the political, legal and economic relationships between a majority and minority population when they're neighbours and fellow citizens is no simple feat, particularly in modern times, when we see what's going on elsewhere in the world. To do so with peace in our hearts and goodwill through our open hands extended to each other is truly something to be celebrated and shared.

Thank you for your attention.

The Chair: Thank you, and thank you to all of our presenters for staying within the time allotted.

We'll start five-minute rounds, and I'll remind the committee that they are your rules I will enforce. The five minutes is inclusive of question and answer, and we'll commence with five minutes for Mr. Scott from the Reform.

Mr. Mike Scott (Skeena, Ref.): Thank you, Madam Chair, and thank you very much to all the presenters for coming here today and sharing your wisdom with us.

I would like to address my questions to Professor Scott, to begin with.

Professor Scott, I was very interested in what you had to say with respect to the legality of the rule of law. I have two questions for you. First, Professor Hogg, who will be testifying later today in front of this committee, wrote in 1992 that self-government agreements that were being entered into by the Government of Canada were specifically left out of section 35; in other words, they were specifically not recognized as an aboriginal or treaty right up until the Nisga'a agreement. This is the first time we see the self-government rights being expressed as treaty rights. He wrote that this was done so as not to pre-empt the constitutional amending process.

My first question for you is do you see the Nisga'a agreement, particularly the governance provisions in it, as pre-empting the constitutional amending process?

The second question I have for you—and it's in response to what Professor Morse had to say—is how do you see the application of the charter, given section 25 of the charter requiring the courts to give a higher weight, in the view of many people, to collective rights as expressed under section 35 than individual rights as expressed in the charter?

Could you address those two questions, please?

Prof. Stephen Scott: Yes. I think the first question is essentially whether or not this a constitutional amendment. I agree with the essential conclusions in the opinions of Professor Hogg and Mr. Farley, obtained by the Government of British Columbia that, first of all, the British Columbia Constitutional Amendment Approval Act doesn't apply, but that's only because it is framed only to address formal amendments made under sections 38, 41, 42 and 43. I do think that the agreement and the legislation are of constitutional order and are of a constitutional character, and that some parts of them will almost certainly, at any rate, if severable from the rest, become entrenched under subsection 35(1), because subsection 35(3) speaks of rights that now exist or may be acquired by way of land claims agreements.

• 1010

I am not sure that the governance provisions can be regarded as essentially land claims agreements, so I'm not sure how far that will become entrenched. That's obscure. But I do agree that this is essentially legislation of a constitutional nature, of a constitutional order, and I think it's rather beside the point whether treaties were or weren't listed as part of the Constitution of Canada. This is addressed. The issue is whether what is to be enacted will affect the law of the Constitution of Canada. Remember, some parts of the law of the Constitution of Canada are enacted by ordinary federal and provincial acts, sections 44 and 45 of the 1982 act. So there are parts of our Constitution that are, if you like, ordinary law, amendable by ordinary acts. So the fact that something is or isn't entrenched isn't the decisive consideration of whether it's to be regarded as part of the Constitution.

On section 25, I would read it narrowly in that I think it is not intended to disparage fundamental rights and freedoms, but to say that simply because certain rights are enumerated in the charter is not to disparage or deny these. I suppose some reconciliation also is aimed at. But I would be extremely reluctant to give a construction to section 25, or impute to the courts a willingness to give construction to section 25, whereby in some way aboriginal treaty and other rights would be such as to allow violation of free speech, and of the press, and rights of assembly.

So I agree there are problems with the obscurity of section 25. I would not have drafted it just that way if I had been responsible for it. But I think it will not probably be made by the courts into a wedge into fundamental rights and freedoms.

The Chair: You have five seconds left.

Mr. Mike Scott: Essentially you would agree that this likely will come before the courts, this issue of the application of the charter versus the section 35 rule?

Prof. Stephen Scott: I think that will come before the courts sooner or later in one way or another.

Mr. Mike Scott: Thank you.

[Translation]

The Chair: It's your turn, Mr. Bachand.

Mr. Claude Bachand (Saint-Jean, BQ): It is quite interesting to hear that three great minds have different perspectives on this. This leads me to suggest that it's often more a question of ideology rather than a question of fully understanding the issues. There's no doubt that the three witnesses are all very intelligent people, and they have presented three perspectives that are quite different.

Mr. Scott, I understand your approach which is from a very legal perspective. Mr. Morse, I must admit that your presentation most resembles my own opinion on this matter and that your four-page brief represents the best summary that I have read yet. And of course Mr. Flanagan's position is that which probably differs the most from mine.

Seeing as I fully understand the other witnesses' positions, I'd like to concentrate on you Mr. Flanagan, not because I don't like you or I consider that you are not right, but rather because your position is really the opposite of mine.

I'd like to ask you four questions about your brief. Maybe I should ask some of them during the second round.

On page 1 you say that the Nisga'a Treaty may well serve as a model for dozens of other treaties in the future. Since I've been a member of Canada's Parliament, I've witnessed the signing of agreements with Yukon, and with Nunavut. In 1975, the James Bay Agreement in Quebec was signed. These previous treaties are all different from the one we're studying today because they were all negotiated by different nations, according to their own approach. I doubt that we can state that this treaty will serve as a model for future treaties.

• 1015

On page 2, it says:

[English]

they have also received all the benefits conferred by the federal government...

[Translation]

But you didn't report on the issue of the social contract of the time. One must not forget that Aboriginal peoples were there at that time and that the courts had recognized that they had certain rights because they had arrived first. If there was a decision to pay for health and education, maybe that's because we had taken their land and used their natural resources and that we were the richer for it, whereas they became poorer.

I can't disagree with you more with respect to what you say about treaties. On page 3 you state:

[English]

Their purpose was to assist aboriginal people in adopting the civilized mode of life.

[Translation]

In my opinion this is a slap in the face to First Nations. I remember when Mr. Trudeau tried to table Bill 69 in the House, that there was an outcry from the First Nations of Canada who considered themselves nations and who are against any form of assimilation. What's worse is that you are probably right; when these treaties were signed, the goal of white people was probably to civilize the Natives. But that is no longer the case today. We need to consider agreements that are much more akin to the agreement that we are studying here today.

At the end of your brief you say:

[English]

It is a formula for enriching the elite and impoverishing ordinary people

[Translation]

You are alluding to Aboriginals here. Yet again, we find here this traditional attack on Aboriginals leadership, and I don't agree with you. These are elected people. I acknowledge that there is a possibility for abuse, but I find it hard to accept this type of generalization.

I recognize that you won't have the time to answer all of my four questions, but maybe we could come back to them during the second round.

[English]

The Chair: Mr. Flanagan, please.

Prof. Tom Flanagan: With respect to the four questions that have been posed, first of all, as to whether the Nisga'a treaty is a model or a template for future treaties...not in detail, of course, because there's a unique combination of land and money, and other natural resources involved that wouldn't be replicated elsewhere. However, I think negotiators for other aboriginal peoples will have their adding machines out, and they will be able to see the overall value of the Nisga'a treaty according to some formula or other, and they will be looking for a settlement that is at least as generous. So it may be a different combination of things, but it will certainly be a precedent. I think I explicitly said, if not a model or a template, a precedent.

Secondly, on the justification of benefits, I wasn't attempting to enter into the question of whether it was a good idea to grant these particular benefits. Some of them may have been justified; others may have been misconceived. My point is simply that there have been substantial benefits accorded all this time to the Nisga'a people, as well as to the other first nations of British Columbia. It's not as if they have received nothing from government for all these years.

On the third question, on civilization, I think this is a very fundamental point and really would take some time to go into. It has become customary today for people writing about aboriginal issues to put the word “civilization” in quotation marks, what in the academic world we call sneer quotes, as if civilization were a meaningless concept. But it's a very important concept. It refers to a way of organizing society based around permanent intensive agriculture, permanent settlement in cities, division of labour, formalized government, written laws, and other practices that are the hallmark of civilization.

That's not to say that uncivilized peoples lack value or that they are non-human beings; it is to say that history has produced civilization, and it has gradually been adopted around the world. Aboriginal peoples in Canada have adopted it as a result of their contact with the European newcomers. But that was the purpose of the combination of treaties in the Indian Act, to promote civilization, and it has been successful to that extent. It has not been entirely successful, or else we wouldn't be having this discussion.

• 1020

But I don't think we can discard the concept of civilization. Canada's policy towards aboriginal peoples for hundreds of years would make no sense whatsoever without understanding what civilization means.

Finally, on enriching the elite...

How am I doing on time?

The Chair: You're over time.

Prof. Tom Flanagan: Do you want me to stop?

The Chair: Mr. Bachand, to keep everything fair, could we come back to that fourth question on your next round? Thank you very much.

Ms. Davies, go ahead, please, for five minutes.

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

I'd like to thank the presenters for coming today.

First of all, Professor Morse, I really appreciated your comments, and in particular a comment you made at the end about goodwill. I think you ended on that note. It's kind of a simple thing, but it is a Canadian thing. Part of this debate has sometimes been pretty nasty, with what has been going on in the House and what has happened at some of the hearings. So I want to tell you that I appreciate your saying that we have to deal with this issue and we have to move forward on the basis of goodwill. It's not something we talk enough about, so it was a good comment.

I'd like to turn my question to Professor Flanagan. Actually, I was very surprised by your presentation. I don't know whether you're an expert in this field or what your background is, but to me, your comments really kind of buy into this idea that it's “them” and “us”.

I look at what you've said in your brief, where you say: “To offer additional large benefits of cash, land, and natural-resource rights to British Columbia Indians at this point in time...”. To me, it deals with this whole question that somehow we have ownership, and we're now offering or giving away something. It's we who have this, and we're giving it away to the Indians.

I'm really surprised by that sort of tone or conclusion that you come to, because what I think is very clear historically is that the Nisga'a, as aboriginal people, never gave up anything. They have had a claim to their land, and this process of a treaty was to negotiate around resource management.

At the hearing in Vancouver, we had a very interesting presentation, which I would encourage you to look up if you're following the record of the committee, from Professor Rod Dobell, who is a professor of public policy at the University of Victoria. He very well laid out that this issue really is a question of resource management, and he detailed how it isn't an issue of what we have and what we're giving away. I'd really like to question you on that, as well as the idea that I think you come close to, that somehow what happens with the Nisga'a treaty is now going to be laid out across the province and everyone is going to be lining up for big cash handouts.

I think that's a total oversimplification of what has been an incredibly complex process, the twenty years of negotiation based on the conditions with the Nisga'a people historically, as well as the question of their environment, their lands today. To somehow buy into this idea that this is now going to be a domino across the province...again, I'm surprised that you would take that line. We expect it from the Reform Party, but I'm surprised to hear you put it forward.

The Chair: Go ahead, sir.

Prof. Tom Flanagan: There were several questions in there.

On the last one, I don't see how anybody can be surprised. It strikes me as a simple observation that there are dozens of aboriginal peoples in British Columbia. They all have claims to make. The Nisga'a treaty is the first settlement. Everybody realizes there will be an attempt to make dozens more. As I've already said, they may not be identical in detail, but whether you're talking labour agreements or anything else, negotiators always look to the past to see what has been accomplished before.

So I guess I can only respond that I'm surprised that a member of Parliament would be surprised that one should look to the future. I don't see what else one can do. But I would also recommend to this committee to think not only of British Columbia. The issue is much broader than that. There have been no land surrender agreements in most of Quebec or in the Atlantic provinces. I think this kind of process that's envisioned in British Columbia will someday come to most of eastern Canada. Moreover, there have been land surrender treaties in the prairie provinces and in Ontario, but these treaties are all under challenge in the courts for reasons that are too long to go into in the twenty seconds that I have left.

• 1025

Depending on the way the judicial decisions go, we could very well be looking at demands for renegotiation of existing land surrender agreements in the three prairie provinces and Ontario. Again, as the most recent precedent, the Nisga'a treaty will be highly influential, so this is not just a one-off agreement for which we can write the cheque and say we're done. This is the beginning of a very long process for the future.

The Chair: Thank you.

Now it's a round for Mr. Keddy, please.

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

I would also like to welcome our witnesses here. Those were very interesting presentations that you gave, and it has certainly been an interesting debate so far. I would like to pick up on the last comment that Professor Flanagan made, and that is about Atlantic Canada and Quebec, but New Brunswick, P.E.I., Newfoundland and Nova Scotia in particular.

It seems to me that part of this process, and certainly part of the reason I look at this treaty as a step forward, is the very fact that we haven't surrendered land in Atlantic Canada and that we're continuing to be challenged before the courts. At the end of the day, I don't think anyone knows where we're headed in Atlantic Canada. Certainly most of us read with interest the infamous Marshall decision at this time. The fact is that the Supreme Court of Canada really didn't give any direction with that; they simply brought the decision down.

We've now had the court take a second look at it. Although they said they weren't going to take a second look at it, they wrote 30 pages on why they didn't take a second look at it. They put a lot more definition and explanation into it, and the court very clearly says it was a decision strictly about fish, game and gathering, and they interpreted “gathering” to be berries—and I'm not off subject here, Madam Chair. What's interesting about that is the thing that they don't say—although they reference it—and that is the fact that we will continue to have more Supreme Court challenges in Atlantic Canada.

Let me explain where I'm headed here, Professor Flanagan. If you look at the history of contact, and if you look at the various treaties that have been signed and the evolution of that process up to present day, if we don't engage in a modern treaty process, are we going to be forced to engage in something of a similar kind by the courts, or are we going to be dictated to in a way that may not be acceptable to either group?

Prof. Tom Flanagan: I believe there are two lines of jurisprudence developing in the Atlantic region now. One is what I would call an adventurous reinterpretation of the 18th century treaties—we saw an example of that in the Marshall case—and the other is a line of jurisprudence that is now beginning and is underway at a much lower level. It is similar in principle to the arguments made in British Columbia: that title to land has never been surrendered, and therefore aboriginal peoples in the Atlantic provinces still have title to land. That's an aboriginal rights argument rather than a treaty rights argument. Both are ongoing, yes, and what the outcome will be remains to be seen.

The Chair: Mr. Keddy, you have two minutes.

Mr. Gerald Keddy: If we accept that as fact and then come back to the situation before us—what has occurred in the past in British Columbia and what is occurring now—the fact is that we made a decision some time ago to enter upon treaty negotiations, with all parties agreeing to that. We have the results of those negotiations before us now.

I understand Mr. Scott's concern with the Constitution and the Charter of Rights and Freedoms, and I appreciate his interpretation. For those of us at the table here, the majority of whom are not lawyers, legal experts or constitutional experts, it's always interesting to hear another constitutional definition. But certainly there are a number, and I don't think that question will ever be clearly solved until it's before the courts and that decision has been made by one group. Maybe that'll be changed at some other time. If it goes before the Supreme Court, though, that will be our final decision on it, as I understand it.

• 1030

But again to go back to the process, if we respect the fact that there is aboriginal right in this country—which has been proven before the courts and has been settled, although we can argue that however we want—and if we respect the right that there is aboriginal title in this country, how can we go about this process unless we look at some type of affirmation of that through modern-day treaties? Any of you gentlemen may answer that.

The Chair: Mr. Keddy, choose one person. You have fifteen seconds. Who would you like to have an answer from?

Mr. Gerald Keddy: Just go ahead, Mr. Scott or anyone.

Prof. Steven Scott: I have no difficulty with the land grants or with the entrenchment of the land grants. In blunt terms, the aboriginals have been ripped off, and compensation—even generous compensation—is long overdue.

I don't even have a problem with the governance powers if they are amendable from time to time in the way local government powers are. What I have a problem with is the potential creation of 100 or 500 or 1,000 mini-states with semi-sovereign powers that are constitutionally unalterable. That will basically make the country even more ungovernable than it already is, with an endless series of litigations and negotiations and disputes, all of these unresolvable by legislative authority. It is the governance, and particularly the potential entrenchment of the governance provisions, that gives me difficulty.

The Chair: Thank you very much.

Our final questioner on our first round is Mr. Finlay. Please go ahead.

Mr. John Finlay (Oxford, Lib.): Thank you, Madam Chair. I'll try to be brief.

I want to thank you, witnesses. We've had five days of interesting testimony, and you have given us another day of interesting testimony and some differing points of view. I largely share Mr. Bachand's overall view of what you have said, but I will try to make my questions a little pointed here.

Professor Flanagan, I find that you either know more history than I do—and probably you do—or there seems to be something I've missed. In your first statement, in the third paragraph, you say:

Because white settlers had not yet acquired property rights to land, timber, minerals, fish, and other resources, it was possible to set aside substantial land reserves for Indians...

Was this done in B.C.? I was not aware of that. I thought Governor Douglas paid for some land on Vancouver Island. Beyond that, nobody acknowledged that the Indians, the aboriginals, had any land at all. That's certainly my impression.

Secondly, you say that “modern land-claims agreements were negotiated in the Yukon and Northwest Territories”. Were those unwise? Are they going to give us problems? You then say “In contrast, there are well over 100,000 aboriginal people in modern-day British Columbia”. Well, Professor Flanagan, there are over 800,000 aboriginal people in Canada, so I would suggest that B.C. has no great preponderance of them.

With respect to many of their claims overlapping, that's quite true. They lived over the whole country. They're naturally going to claim where they were historically, and that was across the whole country. The Inuit were across the floating ice pans, and they'll claim those too. However, I think we've dealt with that issue fairly well with Nunavut. So I'm not the least bit concerned that many of their claims overlap. To suggest, however, that they therefore think they're going to negotiate the whole country away from 30 million other people is... They're not that silly, and that's not what they're trying to do in the first place.

I take it that from your point of view, the money we spent on the Royal Commission on Aboriginal Peoples is much of a waste. It seems to me that my colleague Libby Davies put it this way, along with Claude Bachand: what the aboriginal people are looking for is respect, recognition, responsibility, sharing, and to become full citizens of this country; they're not looking to become Canada's only landlords.

• 1035

In contrast, you said here in your third point that the aboriginal people in British Columbia have had land reserves for over a century. You're going to have to show me where these land reserves are, Professor Flanagan. I don't know of it in British Columbia. So there's another question: where are these land reserves?

I find your last paragraph about the Indian Act to be very mild in your view of what was clearly an act designed... The chief commissioner and poet, Mr. Duncan Campbell Scott—with all due respect to you, sir—said that the whole point of the Indian Act was to make the Indians into little Canadians, to take the native language and spirituality and ritual and everything else out of them. It's been a total and abject failure. We're at the point where this is happening not only across Canada but also across the world.

I was in Australia last summer. In Australia huge tracts of land have been set aside for the aboriginals, and not only do they have full title to it but they can also keep other Australians out if they wish.

The Nisga'a have fee simple, collective rights to the land for 2,000 square kilometres out of the 87,000 square kilometres that they claim as historic land, and they can't keep anybody out. This treaty doesn't give them...it gives everyone else access. Perhaps you'd comment, please, on that.

The Chair: Professor Flanagan.

Prof. Tom Flanagan: On your first point, there are over 1,000 Indian reserves in British Columbia. I don't know the exact number, but they were allocated at various points in time. On average, they are smaller than the reserves in the prairie provinces, but they are very numerous. I think it's fair to say in fact that perhaps half or more of the reserves in Canada are in British Columbia.

Secondly, as to the wisdom of treaties in the territories, I don't challenge that, for reasons I tried to say here. I'm talking about British Columbia.

Some of your other points were more in the nature of observations than questions, and so perhaps I'll stop there.

The Chair: If the committee members still use their time as observations, please do not expect the chair to give you unlimited time for a question that is posed in the last two seconds. With that gentle reminder, we'll go to the beginning of our second round.

Mr. Konrad, are you going for five minutes now?

Mr. Derrek Konrad (Prince Albert, Ref.): Yes, I am.

I'm not finding it easy to know where to start here. I'd like to start with the Charlottetown accord, which of course was defeated by a majority of Canadians. In there, there was a provision for agreements. It says that self-government agreements should be set out in future treaties, including land claims agreements or amendments to existing treaties including land claims agreements.

If the Charlottetown accord was defeated in its totality and now we are trying to bring back parts of it through, say, agreements like the Nisga'a agreement—and I'm thinking particularly of putting the self-government agreement into the treaty—are we not really defying the wishes of Canadians when they said no to the Charlottetown accord? They said no to linking self-government agreements with land claims agreements.

I'll pose my question to Dr. Scott.

Prof. Stephen Scott: When you have a massive arrangement like the Charlottetown accord, everybody has one vote and they decide what they like or don't like. They like the package or they like each of its items, or they like enough of it to vote yes, or they dislike enough of it to vote no—these are for all different reasons. The fact that a big package is defeated doesn't mean that any particular element in that package might or might not have the approval of the country as a whole or individual parts of the country.

• 1040

I really would rather look at the merits and the desirability of any particular step rather than to try to analyse whether a general popular will exercised against the whole of the Charlottetown agreement...which I was opposed to for radically different reasons, for example, than those of, let's say, the Parti Québécois, though most anglophone Quebeckers voted for it. I didn't like lots of it, just as I didn't like some bits of the Meech Lake accord, but that doesn't mean other bits might not be acceptable and it doesn't mean we can't address them on the merits of any step.

So I really think it's more profitable to try to look at the issues rather than to try to say “Well, the country rejected Charlottetown”—which it did—“therefore it must have rejected each element of Charlottetown”. I'm not sure anyone ever will be able to reach any conclusion about what the Canadian public thought of each element of Charlottetown.

The Chair: Mr. Konrad.

Mr. Derrek Konrad: It's my understanding that the aboriginal community also voted against it when they did the breakdown of the statistics. I might stand to be corrected there, but that's my understanding. Consequently, it seems to me that it might be wise, still, to divide them up on that front.

Prof. Stephen Scott: Dividing them up I would agree with, but I would do it on the merits, not because of what Charlottetown did or didn't decide.

Mr. Derrek Konrad: Fair enough.

The Government of British Columbia is asking for a referendum, and there are many people who have expressed their will through private polls, referenda, devices like that, for calling for a referendum on it. While I realize you're here as a constitutional expert and not a political commentator, does it seem to you that it would be a wise way to go to have general approval?

Prof. Stephen Scott: I don't have strong feelings for or against a referendum. I know that if people like things and they think they're going to get through on a referendum or they dislike things and they think they're going to be defeated on a referendum, that's what governs their view. I'm a bit cautious on referenda and I think they should be sparingly used, but there is a role for them, and depending on how deeply divided the population is, I don't think it would be untoward to have a referendum. On the other hand, I don't think it's a compelling necessity.

I do think that the British Columbia statute, as I said earlier, does not require a referendum, because no one has proposed any resolution for an amendment under part 5, and therefore the British Columbia statute, the Constitutional Amendment Approval Act, simply has no application.

The Chair: Mr. Konrad, the chair heard you say “the Government of British Columbia”.

Mr. Derrek Konrad: Sorry, it's the Liberal Party.

The Chair: Okay. I need a clarification from you, because that's what you have on the record right now. Thank you very much. Go ahead.

Mr. Derrek Konrad: I think that's it for this round.

The Chair: All right. We'll go to Mr. Iftody, because we're now into second rounds.

Mr. David Iftody (Provencher, Lib.): I would just like to give the chair notice that in the next round of questioning Mr. O'Reilly will follow on the government side, if I haven't made that clear.

Thank you very much, gentlemen, for your presentations.

I want to direct my questions to Professor Morse, and in particular I want to immediately pick up on Mr. Konrad's questioning to Mr. Scott regarding the constitutional amendment.

I believe I have understood Mr. Scott correctly in my reading of his notes, and Professor Morse when he said that in his view section 25 was not the thin edge of the wedge in terms of tearing down important pillars and provisions of the charter.

I believe that in point three in your presentation you mentioned something about the charter as well.

In addition, Professor Flanagan generally referred to it in point four of his presentation, but talked about the treaties not being constitutional in their original nature when they were signed, at least not having the intention to have those kinds of protections under subsection 35(1).

• 1045

Let's narrow it down for the purposes of discussion and clarity here, because this whole brouhaha out of British Columbia and with the Reform Party about a referendum is based primarily on the cornerstone of a constitutional amendment. In other words, the signing of this particular treaty triggers an important domino effect that cuts open very widely, broadly and deeply the Constitution, provoking the necessary amending formulas both perhaps within British Columbia and across the country.

Mr. Scott has just clarified that he thought in his view that part 5 of the amending process was not tapped, and therefore the whole question of a referendum in British Columbia was not appropriate.

On this whole notion, could you comment specifically on that point so that members of this committee and the public would have a greater understanding of that whole concept?

Does this treaty in any way breach the charter, and secondly, is it a thin edge of the wedge under section 25 in the charter or constitutional amendment?

The Chair: Mr. Morse.

Prof. Bradford Morse: It's a pleasure to respond. Let me also just echo that I agree with Professor Scott's adoption of prior legal opinions that the referendum legislation in British Columbia is not triggered by this agreement.

I also think he's correct when he indicates that the agreement has some constitutional flavour. I think his words were “constitutional character”. That is accurate. Whenever we see any treaty agreement between the crown and the aboriginal group, it will have a “constitutional character” by virtue of section 35.

However, the same can be said about many other federal-provincial agreements. They have a constitutional flavour to them because they do affect the existing distribution of heads of power between those two orders of government. That's not the same thing as saying they're a constitutional amendment.

This agreement will fill in some content and, frankly, will alter some of the content. Right now, without this treaty, the Nisga'a are able to effectively argue that they have existing aboriginal rights to their traditional territory that would be recognized by Canadian courts.

Therefore, those existing aboriginal rights are constitutionally protected today under section 35. What they're doing through this treaty in conjunction with the two crowns in Canada, federally and provincially, is transforming the content of their section 35 rights from purely an aboriginal rights-based bundle of rights into what is now going to be predominately based upon the negotiated agreement. So that's a change in what is constitutionally protected but not a constitution amendment.

Section 25 has been there since 1982. I remember well great debates in some of these rooms in the House of Commons in 1981 and in late 1980 about the question of the charter and, in particular, about what I think was originally section 24 of the charter that has become, in a slightly modified form, section 25 as it exists today. These debates were in fact taking place. Would the inclusion of this notwithstanding or non-derogation clause gut the charter as it applied to aboriginal people?

Similarly, on the aboriginal side, there was a fear that it was insufficient in protecting rights directed towards them as political groups, but in which they were a different race from outsiders who have come and settled and become Canadians.

So what's the result after 17 years? So far we can't say we've seen any gutting of the charter, nor on the flip side have we seen the charter used as a blunt instrument to beat down aboriginal and treaty rights. In fact, it has not been a focal point of litigation to any significant degree whatsoever. One can't predict the future, but it seems still unlikely to be a major focal point.

• 1050

What it attempts to do, in my view, is simply to try to show that there needs to be a bit of a balance. There is an interplay. Part II, recognizing aboriginal and treaty rights, in the Constitution Act, 1982 is not part of the charter, but it's fundamental. By virtue of not being part of the charter, it still interacts with it, and particularly the concern of section 1 in the charter.

So what section 25 attempts to do is to say that in interpreting the individual rights and collective rights provisions that exist within the charter, we should interpret them in such a way so as to not contradict another part of the Constitution in section 35. That doesn't mean there are no equality rights or no fundamental freedoms of free speech or freedom of religion or freedom of assembly or the like, but it does mean that those have to be interpreted in such a way so as not to violate, as I say, the section 35 protected rights. That's a reasonable balance. So far it hasn't had significant problems.

Are we entirely certain about what it means? No. Are we entirely certain what any statute means that is passed by this august body? No, never. We deal with it as time evolves.

The Chair: Thank you.

[Translation]

Go ahead, Mr. Bachand.

Mr. Claude Bachand: Thank you, madam Chair. I'd like to continue the discussion that I began with Mr. Flanagan earlier. Forget the question about enriching the elite and impoverishing the poor: that's an opinion that I don't share, but you have the right to believe it.

I would rather discuss the passage where you talk about the treaties.

[English]

“Their purpose was to assist aboriginal people in adopting the civilized mode of life.”

[Translation]

I'm going to ask my two or three questions in a specific order. If you answer no to the first question, then I won't need to ask the following questions.

Mr. Flanagan, do you believe that in Canada there are several nations and several peoples? If you answer no, I won't continue with my questions.

[English]

Prof. Tom Flanagan: No, I'm afraid that, like Pierre Trudeau and John Diefenbaker, I'm an unreconstructed believer that Canada is the nation.

[Translation]

Mr. Claude Bachand: I have no further questions.

[English]

The Vice-Chair (Mr. John Finlay): Thank you, Mr. Bachand.

Mr. O'Reilly.

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

Thank you very much, gentlemen, for appearing before us and adding some educated points of view, some different points of view, and some history that I certainly haven't read at this point in time.

In our travels to Smithers, Terrace, Prince George, Port Hardy, Victoria, and Vancouver last week, we encountered some various forms of opposition and a lot of disharmony among the crowd. It actually jaundiced my view of the people who are against the treaty. It actually strengthened my resolve to get into Parliament, vote on it, and get it over with, because I think it's a good thing.

So I have a problem when I want to ask questions of people who are against it—and I'm going to assume that everyone named Scott is against this—but—

Prof. Stephen Scott: I'm not the guy who suggested that.

Voices: Oh, oh!

Mr. John O'Reilly: That was a joke.

My question to everyone who appeared before us, and my question to the three of you, is very simple. What would you recommend to improve the process of treaty negotiations? I think we've moved beyond the Indian Act. I don't think anyone now agrees or thinks that the Indian Act is somehow something that we're going to revert to. We're into the treaty process. There are some 18 treaties being negotiated as we speak, and there will be many more.

So it's the improvement of the treaty process, using Nisga'a as a model of treaties... I certainly don't think it's a template, because there are a lot of different opinions, a lot of different ways of life, and a lot of different facts that are still to come out on how native people live in each different area. Each different one has a problem that we have to deal with—or a different way of dealing with it.

When you consider that there was a fair amount of hostility towards us from members of the Reform Party and that they went out and whipped up people to come out, a whole room full of Luddites who shouted us down and did all kinds of things... What that normally does, I think—even Mr. Keddy would agree, because he was threatened there also—is strengthen our resolve. It gives us more thought that we're on the right process in treaty negotiations.

• 1055

So my question to each of you is this. The treaty is signed. It will be ratified in Bill C-9. Four of the five parties in the House are for it. There's no doubt it's going to go through. You've touched on that and said maybe your appearance before us is not the best use of your time, because a majority of parliamentarians have agreed. So in future processes, what would you recommend to improve the process of treaty negotiations?

Prof. Stephen Scott: Well, I'm not sure there's anything wrong with the process itself. These issues will always be sensitive. There will always be interests that will oppose them. These interests will not always express themselves in a restrained way. This being a political body, these expressions will take political form and they will be controversial, and this may not always take place in a pleasant way.

I would like the interests promoted by the Government of Canada to be a little more sensitive to larger perspectives. As you appreciate, my problem is what will happen at the end of all this if we have very large numbers of semi-independent states with very little ability of the senior government—namely the Government of Canada, the Parliament of Canada, and its legislative institutions—to make reforms where reforms are necessary.

And what about interests such as the rule of law? What is offensive about requiring the Nisga'a laws to be published as a matter of legal requirement? These are going to be public laws of a public government. What is wrong with due provision for archives?

Indeed, on Bill C-9 itself, what is wrong with taking this treaty—which is going to be at least of semi-constitutional or quasi-constitutional nature, and possibly entrenched—and allowing people who have to use the laws of the country and use Bill C-9, the act, once it comes into force, to have the guts of it all, namely the treaty, with the act? What is wrong with that?

Yet there is a total insensitivity, in my view, exemplified by this relatively, you might think, small example. The Nisga'a haven't said “Don't include the treaty with the act”, but the Government of Canada has been entirely insensitive in its construction of the bill. It simply doesn't consider that the public who use the statutes need to have what amounts to the whole act in front of them.

In other words, basic considerations such as the rule of law are just forgotten about; they're pushed under the carpet. There are lots of ways in which the agreement itself could have been made better and more likely to ensure continuing constitutional government if that had been taken account of.

Of course I have the larger concern, once this is all done, not so much with what's in there now, but with whether or not it can be changed later. By all means, pass Bill C-9, but amend it to include the treaty itself so that you know what the act does. Also, I suggested a clause that would ensure this can be amended later by your successors if there turn out to be problems. What's difficult with that?

So I don't think it's the treaty process that is at fault. It is the capacity of government to think long-term, behave long-term, have a long-term perspective, and embody these concerns in its agreements and in its legislation.

The Chair: Thank you very much. We're out of time.

Our next round of questioning goes to Mr. Keddy, please.

Mr. Gerald Keddy: Thank you, Madam Chair.

I want to go back to a few statements made. Quite seriously, Professor Scott, the rule of law does apply when you read the NFA. I take warning from your statement that we should include the treaty, the NFA, with the legislation, and I quite agree with that.

• 1100

The other issue that's come up here a number of times—and Mr. Flanagan dealt with it in some detail—is the cost. The cost is a serious issue. It affects all Canadians and certainly all political parties and all areas of the country, because we'll all pay for this together.

However—and maybe somehow I have a prejudiced point of view on this issue—when I look at the cost, my resentment is not about the cost of the treaty. My resentment is about the billions and billions and billions of dollars we've spent, as Canadians, over four aboriginal peoples, which has not benefited the aboriginal peoples or the country as a whole. All we've done is allow ourselves to fall into this lassitude, if you will, where we just simply allow it to flow along. We don't do anything about it. We don't try to change the system.

We had an awful job in this Parliament to even convince the government to pass Bill C-49. Finally they brought the bill in. They certainly would have allowed it to die on the order sheet. It was to give first nations control of their own property. It wasn't changing the Constitution. It was just taking first nations property out from under the Indian Act so that they had final say on what they did with it. We may not agree with what they do with it, but certainly we should fundamentally agree that first nations have the right to control their own property.

Look at the $6 billion a year we spend now on Indian Affairs and Northern Development, and all the accrued costs in education, dental, medical, and everything. This here actually changes those terms so that first nations can begin to pay for their own way in this country and allows them an opportunity to become ordinary Canadians, if you will.

Prof. Tom Flanagan: Correct me if I'm wrong, but my understanding is that all programs for the Nisga'a will continue. The roughly $30 million a year continues. So the payment, the $500 million in land and cash and resource rights they receive, is in addition to all continuing payments.

The evidence from Alberta, where several aboriginal communities have become very wealthy in a corporate sense from resource rights, is not particularly encouraging. If anything, the additional revenue seems to have worsened striking conditions of social pathology, which are in the newspapers almost every day now.

I could agree, sir, with what you are saying if this one-time transfer meant an end to the continuing transfers and dependency, but in fact it is being overlaid upon the continuation of dependency.

Mr. Gerald Keddy: We will have provincial taxation and federal taxation, we will continue to accrue benefits, but as the Nisga'a's monetary revenues increase, those benefits decrease. It's a sliding scale. It's not something that happens overnight, but it happens over time.

The other thing we have to look at is there's absolutely nothing in this agreement to prevent the Nisga'a themselves from changing this agreement over time as well. So if you have a government based on a democratic process and the opportunity for fee simple land ownership, then you would expect that certainly the economic opportunities would be there and they would be developed; revenues would flow into the Nisga'a government, which is municipal with some quasi-provincial and -federal regulations; and they would have an opportunity to continue to increase those revenues and become self-sufficient. I'm not trying to oversimplify it.

Prof. Bradford Morse: No, I think you're quite right, Mr. Keddy. A significant part of the transfer payments that come from the Department of Indian Affairs to individual first nations is really the kind of transfer payment that generally is paid by the provinces to their residents or to municipalities. They're social assistance payments, for example, which is a significant part of the department's budget.

If you have an economically self-sufficient community, and if a significant part of the settlement is directed towards achieving that objective through a land base and other natural resources as well as the cash contribution, then the social assistance is going to decline.

• 1105

If it's a fully employed workforce, then there are no social assistance payments at all. That part of the transfer payments would disappear. So I think you're right. There will still be—at least in theory, as I understand the structure of this arrangement—some ongoing transfer payments, as there are transfer payments from the federal government to the “have” provinces, such as Alberta and Ontario, as there are to the “have nots”. But the formula is different, and the quantum, in a sense, is different by virtue of their economic situation.

The reality we have to keep reminding ourselves of is that first nations have been a kind of federal municipality. Generally they don't get provincial transfer payments as governments the way municipal governments do, and they don't get the provision of services from provinces the way other provincial residents do. Where the province does provide those services is generally on a bill-back basis to the feds.

So while we see a significant amount of money going from the Indian Affairs budget, on a per capita basis, if we compare it to provincial transfer payments to other provincial citizens, in fact it's far less.

The Chair: Thank you, Mr. Morse.

The next round is Mr. Bonin.

[Translation]

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

[English]

I need some clarification, Mr. Scott, on your third point, the rule of law, where you say:

Given the unsatisfactory, and sometimes scandalous record, of senior levels of government in this regard...and, in Bill C-9, to ensure the continuing integrity and preservation of legislative and administrative archives of the Nisga'a government, and, indeed, the lack of obligatory provisions for publication of legislative and executive Acts.

I refer to paragraph 18 in the agreement under “Register of Law”, which says:

Nisga'a Lisims Government will:

a. maintain a public registry of Nisga'a laws in the English language and, at the discretion of Nisga'a Lisims Government, in the Nisga'a language;

b. provide Canada and British Columbia with a copy of a Nisga'a law as soon as practicable after the law is enacted; and

c. establish procedures for the coming into force and publication of Nisga'a laws.

Could you comment on how you would improve this, please?

Prof. Stephen Scott: How would I improve it? First of all, I would have stronger provisions for the keeping of archives and the preservation of the integrity of archives. It's a sensitive matter to start on examples of...and I won't get into senior levels of government tampering with legislative archives so as to fix up bills after passage and before assent, tamper with a statute after assent, or assent to bills that weren't assented to by getting the lieutenant-governor to sign a copy. I won't go into examples of that now.

Nevertheless, we have had what amounts to falsification of legislative records in this country. I believe that constitutional amendments are necessary to ensure integrity of legislative records at all levels. But once we're dealing with agreements and establishing new governments, very tight provisions on the archives are number one.

The registry of laws: It is not adequate to have a registry of laws. They have to be published in the Canada Gazette. The federal government can pay for that, as well as administrative acts of a general character.

It's all very well to say that these public governments will have registries of laws, or that a copy will be available somewhere in the federal or provincial archives. But for practical purposes, people have the right to have the law immediately and readily accessible. So gazetting is really a problem—publication of laws.

In my view, to say that the Nisga'a government is required to make some provisions on these matters and not even absolutely require publication is inadequate. I had that precisely in mind.

I don't for a minute believe that it was the Nisga'a who said “We don't want to publish our laws.” What I say is that there's an insensitivity to these kinds of issues within the Government of Canada itself, within the relevant departments. Government departments—let's say the Department of Justice, Indian Affairs, but Justice primarily—that should be concerned with general constitutional government and the rule of law generally have, let us say, a very spotty record.

Mr. Raymond Bonin: Being from Ontario and with the downloading, I can say there's very little left for the province to do. All of these responsibilities have been given to municipalities. Do you think the same provisions should apply to every municipality in Canada?

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Prof. Stephen Scott: I think every municipality should be required to publish its laws in a satisfactory manner. I think the provincial gazettes are the logical places for publication of laws. In fact you get a state of affairs where at a certain point, if the municipality is old enough or if there's a fire, records disappear, and there are bylaws in force in this country that can't be found anywhere. Can you imagine laws that exist and are in force and of which there's no record anywhere?

I think there are various ways of dealing with this kind of thing—archives, deposits, and so forth—and I think it was a good step to say that copies should be sent to the federal-provincial governments. That was, in other words, an excellent first step.

But what I think is that all this should be made systematic. These kinds of things are never thought of in terms of a constitutional amendment to guarantee the rule of law in these respects. Where the shoe pinches, a fuss is made. But there are 101 useful constitutional amendments that could be enacted to deal with what I'd call uncontroversial matters.

Mr. Raymond Bonin: I understand the concern you have. You're recognizing that the provision we have here under clause 18 brings this form of government beyond all other local forms in Canada, and therefore you're concern—

Prof. Stephen Scott: I don't say all those—

Mr. Raymond Bonin: Your concern is not necessarily this agreement, because it brings it beyond.

Prof. Stephen Scott: We're dealing with this. When we pass an Ontario municipal act, we can debate that. But this has to be dealt with. And you can't make this deficient, because in Ontario or Saskatchewan or somewhere else the provisions may be deficient. Sitting here, we can't look at all the provincial acts—and often in a given province there are several acts dealing with municipalities—as to whether the provisions are adequate or not. All we can do is look at that. The federal government, where it has responsibility, should ensure the rule of law.

The most flagrant example, as I suggested at the end of my remarks, is simply Bill C-9 itself. How can anyone in this country use the act coming out of Bill C-9 and know what effect it has without having the agreement? The agreement is the whole guts of Bill C-9, and yet that isn't going to be in the act. Why?

Mr. Raymond Bonin: So what I leave with is the example of this agreement, that clause 18 is a good example to be applied to other levels of government.

The Chair: Thank you very much.

Mr. Scott. We'll start our third round of questioning now and we'll do a complete third round.

Mr. Mike Scott: Thank you, Madam Chair. I'm going to go to Mr. Morse for a minute.

Mr. Morse, in your opening statement you indicated that opponents of the treaty were propagating myths about the treaty, and one of the ones you touched on was taxation without representation. You said that clearly was not part of the treaty. I assume you're familiar with the treaty, the document, and I assume you're familiar with paragraph 3 on page 217, where it says:

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

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

Now, I would suggest to you that while that doesn't guarantee to a Nisga'a government that they will have direct taxation authority over people other than Nisga'a citizens, it certainly is contemplated; it certainly wouldn't be included in the agreement if it weren't contemplated. And therefore there is provision in the treaty for taxation without representation, because those individuals will not be able to run for office or vote for the people who will in fact possibly be levying taxation on them.

I would like you to respond to that, sir. If you do not believe in the concept of taxation without representation, would you agree that this provision should be taken out of the treaty?

The Chair: Mr. Morse, go ahead.

Prof. Bradford Morse: Let me deal with the latter first.

I don't entirely believe in the concept that you can't have taxation without representation, because of course we have visitors to this country every day who pay taxes but don't have any democratic right to vote. Similarly, for permanent residents or landed immigrants, they're not citizens, yet they're taxed. So I think we can't apply it holus-bolus, because in fact we don't.

In terms of the particular comment you made about paragraph 3, I'm struck also by the degree to which you use the word “possible”. The point here is that too many are suggesting that under this treaty now, as passed, there will be taxation without representation, and what I'm saying is that's not the case. Paragraphs 1 and 2 on that same page make that quite clear.

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I quite agree with you that paragraph 3 raises a possibility that in future there might be agreements reached whereby the Nisga'a might tax people who are not Nisga'a citizens. But that is a possibility only, not a probability. The fact that it's included doesn't mean it's anticipated that it will occur, but rather there's a possibility that it will be discussed.

Similarly, what flows with that is of course the possibility that those people who are taxed may in fact have representation. You've assumed that the outcome will be that they won't be able to vote in any government that taxes them, and it's not clear to me that this will be the ultimate outcome. So they may end up in fact getting taxation with representation.

The further part about this of course is that we have to appreciate that non-Nisga'a people who are in this area, which has predominately Nisga'a residents, don't have a municipal government structure that is present on the ground, so they're paying taxes now to a regional structure that is somewhat removed. I guess it's conceivable that down the road the local government for them might really be the Nisga'a government, rather than the more distant regional government, to which they would then pay taxes and to which they may very well have electoral rights.

Mr. Mike Scott: Quite frankly, I'm finding it a little tiring to follow your mental gymnastics, but at least you agreed with two things. You agreed that from a philosophical point of view you don't necessarily have a problem with taxation without representation, which I think is interesting to hear from somebody in your position. You also agreed that the provision is clearly there in the treaty that while it may not take force and effect on day one after implementation, taxation without representation certainly is contemplated in this treaty.

The Chair: Mr. Morse, go ahead.

Prof. Bradford Morse: No. Let me repeat my comments, if I can just clarify this.

First, I've indicated that in Canada today every government taxes people who cannot vote for them. Now, if you're suggesting we should do away with that and repeal all taxation that applies to visitors, permanent residents, and landed immigrants, I'd be interested to hear that. But until that's the case, that is the reality. So I think it's false to suggest that all people who pay tax participate in the election of their government. That's just not true.

The second point I would make is that the fact that this clause exists that there could be taxation of non-Nisga'a citizens in the future doesn't mean there will be. It's not a clause that is triggered solely by the Nisga'a; it's by—

Mr. Mike Scott: I would suggest to you, sir, that the clause wouldn't be in there if it didn't mean it was going to happen.

The Chair: You're out of order, Mr. Scott. Please let him finish his answer. You've asked your question. You don't cut off the witness.

Go ahead.

Prof. Bradford Morse: There are many provisions in all forms of agreements, including legislation, that create opportunities for what might happen in the future. We don't attempt to close all those doors; we in fact leave them open.

But what's critical to appreciate here is the opening language to this paragraph: “From time to time Canada and British Columbia, together or separately, may negotiate”. It's not the Nisga'a Nation being able to do this unilaterally; it means that either the federal government or the provincial government or both governments have to be party to such an agreement. Presumably the kinds of concerns you have are the kinds of concerns that will be debated if and when—but I stress “if”—a day ever reaches when such a proposal is under consideration.

The Chair: Okay, that's the end of that round.

Mr. Karetak-Lindell, for five minutes, please.

Mrs. Nancy Karetak-Lindell (Nunavut, Lib.): Professor Flanagan, on page 2 of your presentation, your last sentence was saying: “To offer additional large benefits of cash”, etc., to Indians will “create a demand for similar treatment by aboriginal people in other provinces.” I took quite an exception to that sentence, because I'm thinking of all the other situations we have in Canada right now. That's like saying don't extend farm aid to farmers in Saskatchewan, because other farmers in the rest of the country might follow suit. Don't do licence buyback or retirement packages to fishermen, because other fishermen might get the idea. It's like saying don't let people know what their rights are to universal health care in case they take advantage of it.

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I'm not sure what you mean by that sentence. It's almost like saying let sleeping dogs lie because people might exercise their rights if they find out what they are. I'm not sure what you mean by that in terms of coming to some settlement with people that will create other situations in which other people might exercise their rights. Again, it's like telling GM not to agree to labour union demands because other unions might do the same thing all across Canada.

What are you saying in that sentence?

Prof. Tom Flanagan: I'm trying to draw the attention of this committee to the fact that the Nisga'a agreement has to be considered on its own merits, of course, but it also has to be considered in a larger context. As I've indicated, most of the eastern part of the country has not been covered by land claims surrenders, and the Nisga'a agreement will set a standard. I predict there will be a similar process of negotiation in the provinces of Nova Scotia and New Brunswick.

Also, at the present time, there are in the courts a large number of cases that have as their purpose the upsetting of existing land surrender treaties in Ontario and the prairie provinces. I think members of this committee should be aware that existing treaties that have already authorized compensation for extinguishment of aboriginal title in the 19th or early 20th centuries are coming under attack. All of this is a context for consideration of the Nisga'a agreement.

I would think one of the great virtues of Parliament and what distinguishes it from a court is that Parliament, through its deliberations, can take account of the future and can try to anticipate future problems, whereas courts by their nature have to primarily focus on adjudicating rights in a specific context. I'm therefore just trying to remind the committee that they have this opportunity to think about the impact of this on Canada as a whole.

Mrs. Nancy Karetak-Lindell: I can ask the question to Professor Morse then: When you study law at school, what do you study? Do you study precedents that were set by certain cases and then base other cases on them? Is this any different from what already happens with every other case in the country?

Prof. Bradford Morse: Yes, it is, in that every court decision, every statute, every regulation, every treaty that is negotiated carries some precedential weight.

There's something that's striking to my ears about this comment on the Nisga'a agreement. Having been involved in aboriginal legal issues for 25 years, on all sides and for various foreign governments as well, I hear the same comment about every kind of major new agreement that comes along: It will be a model or a template for everything else, everybody else will want the same, it will raise the bar, etc. I'm sure Monsieur Bachand may remember some of these comments about the James Bay and Northern Quebec Agreement in 1975. In fact we've seen it repeated in Inuvialuit Final Agreement in the western Arctic, the TFN agreement in your home region, etc. Similar arguments were made in the 19th century, were made in the 18th century, and were even made in the 17th century about some of these treaties. And they've been made in other countries, too.

The converse side is often that there are aboriginal critics of these agreements who raise the exact same concern: that this is a precedent that will be imposed upon them. In fact what we've seen over the development of time is that while there are similarities between some agreements and others, there are also fundamental differences between them as well. That's the nature of negotiations.

I take your point on farm aid or General Motors. Those agreements have precedential weight elsewhere, but they're not automatically applied. We will see the Nisga'a agreement being looked at by provincial governments in the Atlantic region, the federal government, and the Mi'kmaq and Maliseet. Parts of it they'll like, and parts of it they won't. There's no doubt that each side will come at it with different objectives. That's fundamentally what negotiations are always about. Just as in law schools and in litigation, we look to prior case law and pick the ones we like, and we try to distinguish the ones we don't, and then we argue our cases accordingly.

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The Chair: Thank you.

[Translation]

Mr. Bachand, please begin.

Mr. Claude Bachand: Thank you, madam Chair.

I didn't have much luck earlier with my little quiz with Mr. Flanagan, because he answered no to my first question, when I asked him if he believed that there could be several peoples and several nations in Canada.

I wonder if Mr. Morse and Mr. Scott would now like to play my little game. Since they are professors, they should be curious. I would invite them to answer yes to the first question, which will allow them to hear the other questions.

Mr. Morse and Mr. Scott, do you believe that there are several nations and several peoples in Canada? I would ask you to answer yes or no, after which I will see if I should continue with the little quiz.

Mr. Stephen Scott: My answer is quite simple: it all depends on what you mean by peoples and by nations. The answer could be yes or no, depending on the definition of these words.

Mr. Claude Bachand: Mr. Morse.

Mr. Bradford Morse: My reaction is similar: it depends on the context in which you ask the question. Is it in the context of international law or domestic law?

Mr. Claude Bachand: There you have the proof, madam Chair, that we are in the presence of intelligent people, because they didn't answer categorically yes or no. Mr. Flanagan is also intelligent, even though he answered a straightforward no.

Please allow me to continue with the quiz. If you recognize that there may, depending on the case, be several peoples and several nations, I imagine that you would recognize their rights. This would be the subject of my second question.

If you recognized their rights and the courts, including the Supreme Court, also recognized these rights, then there would have to be partnership agreements with these different nations. I have always maintained that this agreement was a partnership agreement between the federal government and the Nisga'a nation.

The fact that we manage to reach agreements such as this one destroys the arguments that our opponents use when they say that it creates enormous uncertainty. I was trying to follow a logical and intellectual train of thought with each of the witnesses in British Columbia, though some answered my question better than others. Some approved, and others did not.

Obviously, if you answer at the outset that there is not more than one people or one nation, it is impossible to follow this train of thought because in the end it is impossible to recognize a nation's right if the nation doesn't exist, just as it is impossible to recognize the signature of a partnership if we don't recognize first of all that the partner is a nation which has rights. When you have nothing, as is likely the case for the 49 other nations in British Columbia, then that is where you have uncertainty. An agreement creates certainty.

And if you recognize that this is a nation or a people, then do you recognize that they have rights? If they have rights, could it be expected that these nations and the nation of Canada sign partnership agreements? And if this is the case, have we not solved the whole issue of uncertainty?

[English]

The Chair: Who would you like—

[Translation]

Mr. Claude Bachand: Maybe Mr. Morse, whose position most closely resembles mine, could answer first.

Mr. Bradford Morse: It's better if I give you my answer in English.

[English]

The Constitution of Canada itself recognizes the existence of aboriginal peoples as peoples, as does section 25 of the charter. Even back in 1867, section 91, class 24, spoke of Indians not as individuals but, again, really as peoples. I don't think there has been much question about that. If we go back to the Royal Proclamation of 1763, it spoke of the tribes or nations of Indians. If we look at

[Translation]

the Supreme Court decision in the Sioui family case of Wendake,

[English]

again the Supreme Court spoke in terms of the Huron Nation as being a nation. In fact, the court spoke of it being an independent nation prior to contact with the French or, later, the British regimes. I don't think there's much doubt that aboriginal peoples were nations before contact in an international law sense.

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It seems to me what has happened as articulated in the U.S. Supreme Court is perhaps correct. The force of history and the force of colonization imposed upon aboriginal peoples transformed them from independent nations into something less than that. The U.S. Supreme Court view is that they are domestic dependent nations.

It seems to me that is what we are grappling with or grasping towards today. Having recognized them as peoples and having recognized them as possessing distinct collective rights, we're trying to engage in that kind of partnership. It seems to me what flows from that partnership is recognizing that aboriginal communities, not individuals but communities of aboriginal people, can form themselves as governments today. They used to be governments, and many of them have continued to be governments throughout, and therefore we can engage in intergovernmental agreements with them on a government-to-government basis.

On the aboriginal side, I think there's clearly a people. On the non-aboriginal side, it's the rest of us, on behalf of Canada as a whole, which includes the aboriginal participants.

[Translation]

Mr. Stephen Scott: I'd like to point out to Mr. Bachand that there is one nation in Canada with which we want to sign an agreement.

Mr. Claude Bachand: That depends on the context. You need to determine if this is in an international context.

The Chair: That's all the time you have.

[English]

Thank you.

Mr. Iftody, please.

Mr. David Iftody: Thank you very much, Madam Chair.

I have two separate questions I'd like to pose to two of our panellists. I want to be very clear and judicious on my time. My first one will go to Mr. Flanagan, and when two and a half minutes are up, could you notify me? I'd like my second question to go to Mr. Scott.

The Chair: No problem.

Mr. David Iftody: Thank you.

Professor Flanagan, in terms of seeking constitutional amendments and the further delegation of powers from Ottawa or the provinces, there has been a movement recently within the Federation of Canadian Municipalities. I believe in Manitoba I've seen a resolution emanating from that body seeking and requesting of the Parliament of Canada preliminary discussions leading towards a constitutional amendment to give municipal governments in the country more powers, arising from a belief that as creatures of powers from section 92 they feel somewhat stifled; they are closer to the people as politicians in a body working with the immediate needs of the constituents, and they need more powers to be able to do this.

Mel Lastman, the mayor of Toronto, made loud musings about that most recently, publicly, that he was seeking additional powers for Toronto as a separate kind of constitutional entity to be able to deal with matters falling within his jurisdiction. In other words, rather than going begging to the provinces or to other bodies for resources—and the federal government, for that matter—municipalities are seeking greater ability to do that.

My colleague Mr. O'Reilly posed this question to Mel Smith, a constitutional lawyer from British Columbia. I think you're probably familiar with him. We asked him whether he had any difficulties with the new rise of these kinds of sentiments and thoughts.

I wonder what your thoughts are on that. Would you support a constitutional amendment for municipalities like Toronto, or the rural ones in Manitoba or Alberta, to give them more powers?

The Chair: Before you start, we're at two minutes and 27 seconds, so we'll get the answer for this, and it would appear you won't get your second question.

Mr. David Iftody: It could be short. I really want to go to Mr. Scott for another question.

Prof. Tom Flanagan: I would be opposed to that. I think we're loading far too much into the Constitution, as I fear will be done by the Nisga'a treaty, and I oppose other steps in the same direction. I think we should leave as much as possible within the realm of normal politics, rather than constitutionalizing it, particularly because our amendment formulas are unworkable.

The Chair: Go ahead.

Prof. Stephen Scott: I would agree with the rejection of that. Let me simply say this is not a new idea, but an old one that gets resuscitated from time to time. It would simply make the country even more ungovernable than it is. You can expect this kind of comment by mayors, especially popular and successful and important ones, from time to time, but in my view, it should be a complete non-starter.

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Mr. David Iftody: My second question, with the minute and forty-five seconds that I surmise I have remaining, I would like to ask to Mr. Scott.

In his opening remarks and the four or five points he made, Professor Flanagan talked about it being the intention of the forefathers who signed these treaties to amalgamate, include, equalize, or whatever kind of language you want to use, the first nations people into the larger Canadian society. In one of your opening comments, you used the words “breathtaking in its insolence” in terms of some of the ways we have treated and dealt with our first nations people. I was going to ask you to comment on that in light of the fact that until 1960, for example, first nations people weren't allowed to vote. As a constitutional lawyer, you're probably aware of the Drybones case and these kinds of things that started to emerge in the 1960s.

Wouldn't you think it was rather odd to make those kinds of comments, or those made by Professor Flanagan, in the face of evidence, particularly in the 1940s, 1950s, and 1960s, that Canadian society has excluded aboriginal people, and the treaties therefore couldn't have meant to include them in that kind of fashion?

Prof. Stephen Scott: I think we can't read too much into treaties. All these things are in the context of their time. The oldest treaties were designed to allow, if you like, white settlement, and to try to ensure that aboriginals could occupy defined spaces instead of hunting and using land over the whole space of the country. There has been a great deal of historical injustice.

On the broad thrust of this agreement, with which I have no difficulty, very fair comments have been made by many around the table. Mr. O'Reilly and Mr. Finlay indicate a broad sentiment that this is attempting to achieve historical justice, and I agree with that.

My problem with all of that is taking things in context, not creating problems for the future, being concerned with detail and not just a general overview, not just taken, as political decisions tend to be taken, in the very short term, and not creating more problems for tomorrow.

I re-emphasize what I said at the outset, that everybody, including the aboriginal peoples, has a very strong interest in this country working. They spend the same dollars as the rest of us, and if we become an ungovernable country and our economy is down the tubes, nobody is going to benefit, aboriginals or others. So I sense, yes, there is historical injustice that has to be dealt with, and this is a good start, but there are problems with it, and they shouldn't be just pushed under the carpet.

There is a lot of historical injustice, and we mustn't simply try to gild the lily, or sugar-coat the past treaties, or whatever. In my view, the realization that historical injustice has taken place and must be dealt with in a realistic way is a relatively modern notion.

The Chair: Mr. Keddy, please, for five minutes.

Mr. Gerald Keddy: Thank you, Madam Chair.

I have a couple of questions for Mr. Flanagan. On the first question, I'd like a short answer, and then you can take your time on the second question.

My first question is one that I wrestle with all the time. I've made a decision on it for myself personally, but I also have to make those decisions for other Canadians. In my opinion, certainly the Indian Act and the way we've tried to deal with first nations in this country haven't benefited either first nations or the Government of Canada, the people of Canada, if you will. Do you agree or disagree with that statement?

You can't do it in a short answer?

Prof. Tom Flanagan: Yes.

Mr. Gerald Keddy: Okay. Thank you.

This is more in relation to what Professor Scott has said, but I want to ask you this question because I think it's important. Like most members on this committee, I think I've taken issues and tried to deal with them one at a time and then look at them in the overall aspects of the treaty. But on the issue of taxation, in relation to Mr. Scott's questions—not Mr. Scott's answers—this, to me, is hardly worth discussion. But I want another opinion and maybe a different opinion from what we've heard so far.

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But I think it's very clear. it says: “From time to time Canada and British Columbia, together or separately, may negotiate with the Nisga'a Nation, and attempt to reach agreement on”—and it divides it into taxation. It could allow for “direct taxation authority over persons other than Nisga'a citizens, on Nisga'a Lands”. I'm trying to précis that so you'll have time to time to answer.

It says in negotiations with the Province of British Columbia and the Government of Canada, so it absolutely does not allow taxation without representation in this agreement, in my opinion. However, it would allow, through negotiations in the future, possible taxation of people who may not be able to vote for government. But that would be due and subject to negotiations with B.C. and the Government of Canada.

Do you read that differently from the way I do, or have you other fears that something else is meant there?

Prof. Tom Flanagan: No, I think I read it the same way. I have no quarrel with the way you've read it. But I wonder why we wouldn't put in an agreement that two levels of government might, in the future, be able to negotiate a right to theft, for example. We would think that would be wrong under all circumstances. So it strikes me as troubling that we would put in an agreement that governments in the future may be able to negotiate taxation without representation. I agree with Professor Morse that it sometimes exists, but all the cases he points to are visitors, or residents, non-citizens. But it's going a little further to say that Canadian citizens will be negotiated away by their own government.

Mr. Gerald Keddy: Actually, if you look at immigrants in this country who have no intention of leaving, but who have kept their foreign citizenship for other reasons... Perhaps those reasons are investments in that foreign country. Perhaps they have family there. They have a need to travel back and forth, whether that's between Germany and Canada, or Canada and the United States, or Canada or Indonesia. Therefore, there are all kinds of Canadian citizens—and I'd suggest, sir, hundreds of thousands and perhaps more Canadian residents, permanent residents in this country—who pay taxes, yet do not have the right vote in provincial and federal elections.

Prof. Tom Flanagan: Yes, and I can understand the justification for that. But it's beyond me why we would want to extend that to Canadian citizens.

Prof. Bradford Morse: But if I understand it, for all of us who are not residents in Ontario, I bet you we're all going to be paying some Ontario sales tax today. We're not voting for the Ontario government. I'm an Ontario resident, and I do. You're a Nova Scotian. You're an Albertan, right? Currently in Quebec, if you buy anything in this province today as a citizen you'll be paying tax, but you're not electing the government that's taxing.

Mr. Gerald Keddy: Sales tax is not the area I have a problem with. The area I have a problem with is federal income tax. I think we have to recognize that there are lots of people in this country who have all the rights and privileges of a Canadian citizen and, for all intents and purposes, are Canadian citizens except that they cannot vote in a provincial and federal election or hold public office in provincial and federal legislatures. So we do curtail that right. And I think there's a difference in saying that we curtail that right on the right to tax...but they're not somehow a benefit of all other rights and privileges due to a Canadian Citizen.

The Chair: You're out of time. We have one more five-minute round to finalize this third round, and that's going to go to Mr. O'Reilly.

Mr. John O'Reilly: Thank you very much, Madam Chair.

Perhaps I could follow on Mr. Keddy's point and allow you to answer. I'm more interested in the answer than Mr. Keddy's long questions. Mr. Keddy is the type of person who, if you ask him the time, will build you a grandfather clock. So I would welcome your answer to that, and also to my question previously to Professor Flanagan and Professor Morse, who didn't get a chance to answer, and that is what would you recommend to improve the process of treaty negotiation?

The Chair: Who would you like to start, Mr. O'Reilly?

Mr. John O'Reilly: Professor Flanagan.

The Chair: Professor Flanagan, go ahead.

Prof. Tom Flanagan: As a wrap-up to the discussion of taxation, of course it's true that if I go to Quebec I pay sales taxes there. All of these things are true. But it seems to me that it's taking quite a further leap to open the possibility that Canadian citizens who live permanently in an area may be taxed by a government for which they will not have a right to vote. As a Canadian citizen, I find it troubling that members of Parliament contemplate that with equanimity, and I suggest that many other Canadian citizens will be troubled by that.

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Your other question was about the process. What I have tried to say this morning is that I have grave doubts about the sustainability of the process on which we are now embarked, which is negotiating treaties not in the territories but in the provinces. I believe that will spread from B.C. to other provinces and will perhaps lead to the renegotiation of existing treaties.

I realize I'm rather late to be raising these warnings, but this is the first time I've been invited. We are well down this path. I realize that the Government of British Columbia and the Government of Canada agreed to start down this path at the beginning of the nineties, and negotiations are well advanced. I can understand why elected people want to get this done. I understand all of that.

But when I look at it from my own standpoint, which is some study of history, I believe the process is unsustainable and that the farther we go down it, the greater difficulties we will create for the future. So I'm not so much interested in making specific recommendations about how to improve it as pointing out that I think it's the wrong way to go.

I'm impressed by the practicality of what Professor Scott has said. If I could make my own suggestion of what I think might be a practical agenda for a committee like this, it would be to undertake a study of the real-world effects of the modern, large land claims agreements that have been signed, starting with the James Bay agreement. We have now about 25 years of modern land claims agreements.

My colleague Professor Morse has stated that the intention of these is to make aboriginal people self-sufficient. That may well be the intention, but it's an empirical question of whether or not they do that. I think this committee has the resources perhaps to undertake an empirical study of the real-world effects of these agreements. Do the lands and resources that are transferred have the effect in the real world of making the recipients less dependent on government, less likely to resort to welfare, more likely to enter the workforce, more likely to become self-sufficient, and less susceptible to social pathologies? I think that's something a committee of this kind could undertake.

Prof. Bradford Morse: Very quickly, I think the treaty process clearly can be improved, particularly in the British Columbia context. Let me just offer three suggestions: one is that all parties to the negotiations have to be more time sensitive. We can negotiate complex agreements in reasonably tight timeframes if we're prepared to devote the energy and commitment to those negotiations. Part of the difficulty, I think, in the B.C. process, with 50 tables underway, is that at the current rate of progress, we're looking at many, many, many years before these issues are completely settled in comprehensive agreements, and that's unfortunate for all parties.

The second way to address that, it seems to me, is that the parties at the table have to be clearer and more proactive in putting forward their fundamental positions. They have to really engage in the debate, put out their positions, and try to drive them toward compromises as quickly as they can.

The third component is that we have to accept that many of the tables that are created at present are on a small scale. They're individual small first nations. The scale is just not large enough to sustain what the aspirations may be. We really have two choices: some of those tables have to be consolidated to a larger scale by regional government that is able to function, such as the Nisga'a government, which is the entire Nisga'a Nation, all their communities, not one by one; or the first nations have to accept that while they may have theoretical jurisdictions, many of those jurisdictions are going to be hollow, because there's just not the human resource base or the population to be able to, for example, effectively run hospitals when you have a community of 100 people. So yes, you have jurisdiction over health care, but it doesn't translate into the tangible results people may envision will automatically flow. So I think there have to be some consolidations in that regard in order to expedite the process.

It would be difficult to sustain the commitment and achieve what we are seeing achieved in the Nisga'a agreement, the levels of certainty and goodwill forming from that, if 20 or 30 years from now we're still seeing negotiations underway, as for example in Quebec, where 25 years after James Bay we still have negotiations underway. They haven't even started in Atlantic Canada.

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Mr. John O'Reilly: Madam Chair, to finish off, I deal all the time with representation without being allowed to vote. Municipal elections are all held on the same day, and many people who live in Toronto and own a cottage in the beautiful Kawartha Lakes region pay all kinds of property taxes, and they're not allowed to vote. So this is not new and not something I haven't heard before.

Thank you, Madam Chair.

The Chair: Thank you.

That completes our third round of questioning of these witnesses. It remains to thank you for your testimony today on behalf of all of the members of this committee.

I think throughout all of our deliberations the witnesses who have appeared before us have brought a broad range of views, and it's very good for us to hear a broad range of views so that we can take that into account.

I thank you.

I just have a couple of announcements for the members of the committee. One, I remind you that we meet in less than an hour for the video conference, and we are in a different room. We will meet in room 701 of La Promenade Building from 12.45 pm. until 2 p.m.

During the course of this meeting, our witness from this afternoon contacted the clerk and let us know that for personal reasons he has to cancel. As soon as our clerk gets back to her office, you'll get a formal notice cancelling the 15.30 p.m. meeting.

Two, last week some of you indicated you may have an interest in seeing some of the Nisga'a artifacts that are now at the Museum of Civilization across the river. Because our meeting has been cancelled, I've made arrangements for us to go there. Right after question period, those who are interested in going can gather outside the members' entrance. It's not a formal meeting. So we'll see you later today.

Thank you very much. This meeting is adjourned.