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]

Monday, November 15, 1999

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[English]

The Chair (Mrs. Sue Barnes (London West, Lib.)): Ladies and gentlemen, we will commence meeting number 6. The order of the day is Bill C-9, an act to give effect to the Nisga'a Final Agreement.

We have a panel scheduled for this afternoon's witnesses, and I wish to welcome, from the B.C. Shellfish Growers' Association, Ms. Debra Logan; from LGL Limited Environmental Research Associates we have Karl English; from Simon Fraser University we have Professor Parzival Copes; and from the British Columbia Fisheries Survival Coalition we have Mr. Phillip Eidsvik. Thank you all for attending.

We will do this as a panel. The panel has agreed on an order and each person will have as close to 10 minutes as you can make your presentation. I'm not worried about 30 seconds, but please don't try for 20 minutes because it won't happen. We'll commence with Mr. Eidsvik, then Mr. English, then Ms. Logan, and then Mr. Copes. So, Mr. Eidsvik, the floor is yours whenever you're ready to go.

Mr. Phillip Eidsvik (Executive Director, British Columbia Fisheries Survival Coalition): Thanks for coming to B.C. I'm glad the Reform Party forced you to come out. As Mr. O'Reilly says, it's a song and dance show, but we're glad you came. At least we'll have a chance to say something.

We represent about 8,000 members. We're the largest fishing organization in British Columbia. The only issue we deal with is issues of aboriginal fishing rights and claims; that's all we do. It was set up because there's a fear in British Columbia that if you object to something like the Nisga'a treaty or a policy designed especially for aboriginal people, you're a bad guy and a racist. A lot of people who would come here and speak to this committee are afraid to do so for that very reason.

Mike Hunter from the Fisheries Council of B.C. sends his regrets. Mr. Green would have loved to come today; unfortunately he was excluded. Mr. Hogan of the Prince Rupert Fishing Vessel Owners' Association would have come today; unfortunately he was also excluded. There was no substitution allowed for Mr. Hunter. Mr. Milton Long, however, who is an ardent treaty supporter in Vancouver, is apparently sitting on standby in case one of the ardent supporters can't make it, and he'll be substituted in.

It's this kind of dishonesty and deceit that has marked this treaty process from the beginning. We didn't really want to bother coming today because, as Mr. O'Reilly says, it's only a song and dance show. But we're here because we want to get on the historical record the outrageous wrong that's occurring in British Columbia. I realize most of you aren't from British Columbia; you'll head back to your communities and this will be a done deal. We who live in the communities will have to pick up the pieces. It's a sad story for me and for our members who fish in this fishery.

As a little bit of background, our previous association sued the federal government, Indian Affairs, in 1987 because the Nisga'a treaty negotiations were secret. We were leaked a copy of the fisheries agreement. We sued in the federal court, we won at trial, and we lost in the appeal because the judge said “Look, they're only talking. It's only a deal. You don't have anything yet. Why get upset?” Fred Welchi, the Indian Affairs negotiator at the time, said “Don't worry, they're going to have lots of time to have their say, Mr. Judge. It's not fair to stop us from discussing it or discussing it secretly because after the treaty is signed everybody is going to have a fair say.”

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Of course, the Nisga'a treaty agreement in principle is released, the final agreement is signed, and there is absolute adamant refusal on the part of the Nisga'a, the federal government, and the provincial government to change even one period in this agreement. So, sure, we have a say. We had to drag you guys out to British Columbia. Do we have any actual input into the agreement? No.

One of the outcomes of the court case was that there was a treaty negotiation advisory committee established. In 1996 these members, representing people in 500,000 jobs in British Columbia, unanimously called for the resignation of the federal negotiator on the Nisga'a agreement. Like the rest of the advice the TNAC provided, it was ignored. So now we have a deal set in constitutional concrete without having a say on it.

We find it outrageous and offensive, and I think what's wrong here is that on the fisheries component you had two ways to go.

Aboriginal people want more opportunity in the fishery. We've always said aboriginal people in B.C. can have 100% of every fishery—already 30% of the participants in salmon and herring are aboriginal—but what has to happen is those of us already in the fishery have to be bought out at a fair price and fair market value, and when new entries come in, in the aboriginal community, they have to fish under the same rules and regulations as everyone else. That was what's called the industrial compromise. That was one model: unity, fishing together like we've done for the last 100 years.

There's another model, supported by the Nisga'a, supported by federal and provincial treaty negotiators, and that's the model of division and separatism. It's where on one day the Nisga'a fish and on another day we fish. Here's a chunk of fish for the Nisga'a; here's a chunk of fish for other Canadians. Separation and division is not a way to start the new century. We don't think that model is acceptable.

I look around the room today, and I know if Mr. Keddy recommended that 25% to 50% of the lobster in his riding be given to the aboriginal people there and that they fish on specific days—they're not as polite down there; the fishermen would probably come and burn his house down, and he'd never be re-elected.

Madam Chairman, I understand you're a lawyer. How would you like it if 25% or 50% of all legal work in Canada was reserved especially for aboriginal lawyers? You'd find that offensive.

Mr. O'Reilly, in the real estate business, say there was a law that required 25% of all real estate sales to be reserved especially for aboriginal real estate salesmen. That's offensive.

The basic principle that I thought we were trying to do through the treaty process, endorsed by the Supreme Court of Canada in numerous cases, is that there should be one fishery. Everybody should fish together under the same rules and regulations, and within that there's all kinds of room for aboriginal people. As I've said, we've maintained from the beginning that you can buy 100% of the fishery.

So we come to meetings like this. I listened to the previous speaker, Mr. Jack Talstra, the mayor, who claimed to have the support of the people in Terrace. He said there was general support for the treaty, yet when he was given a chance to give his people, his citizens, a referendum to say whether they do in fact support it, he refused. The Government of B.C. refused to give us a voice, refused to give us a vote.

I think back to the Charlottetown Accord, where the Conservative Party, the federal Liberals, the Royal Bank, all the major lobby groups, everybody, said this is a good deal for the people of Canada. The people of Canada knew better and they rejected it.

Some people may say we're wrong on the Nisga'a treaty. We think we're right; we've been doing this long enough. The fundamental principle is that the people have the right to be wrong. It is right that we decide. It is not right that you come from Ontario, listen to a few people, stack the meeting with your favourites, head back to Ontario, and then let us live for 500 years with the damage created here.

There have been three referendums in B.C. They were organized by citizens' groups. In each case, people came out and voted. In Norton in Delta—South Richmond, 3,000 people showed up and voted 97% against the treaty. It's an urban riding. In the school district elections the following week, half that number showed up.

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In Port Hardy, a fishing community you guys are unfortunately familiar with, I gather, 44% of the population that voted in the last election showed up at a poll organized by citizens, and 95.5% voted against the Nisga'a treaty.

So to have people come into the meeting and say there's general support when the people were never given a voice we consider inappropriate. Certainly if there were a fair referendum, a fair vote, and we had our say and lost, then I and our members would go home. The democratic process would have had its say.

Today, unfortunately, is similar to the way this whole treaty process has been designed, a treaty negotiated in secret, a treaty blocked from the participation of the average citizen. Yet it's the average citizens who will pay the price with their jobs, their livelihoods, their homes, and their futures. To me that's a terrible thing to leave in British Columbia when you go.

Thank you.

Voices: Hear, hear!

The Chair: Thank you.

Mr. Karl English, please.

Mr. Karl K. English (Vice-President, LGL Limited Environmental Research Associates): Thank you.

I'm grateful for this opportunity to speak to the committee and answer any questions you may have regarding the fisheries component of the treaty. That's the only component I'm familiar with and qualified to answer on.

I'm a fisheries biologist. My job is to collect information and provide advice for the management of fisheries so that we can prevent the overharvesting and destruction of the stocks the fisheries depend on.

Very simply put, what's good for the fish is good for the fisheries. If we have fish, we can have fisheries. So the obvious question regarding this treaty is, is it good for the fish?

I'm going to examine this question with respect to three components, and I have a few overheads that I presume I can use. I apologize that they're not in French as well as English, but some of the most pertinent ones are figures as opposed to words.

The three components I'll look at are the communally held entitlements to a share of Nass area salmon, joint fisheries management, and the Lisims Fisheries Conservation Trust.

With regard to the communally held entitlements, the fundamental component of this treaty is that the entitlement is a function of the abundance of fish. The arrangements will promote the development of an ecologically and economically sustainable fishery. The fact that the Nisga'a share is communally held and a function of abundance of local stocks creates a powerful incentive for the Nisga'a to harvest in the most efficient and economically sensible manner. These methods will be encouraged, because the magnitude of fish catches for the Nisga'a will be directly related to the health of the fish and the size of the stocks in their area.

Harvesting mixed-stock ocean fisheries will be reduced in favour of having more terminal fisheries. The mixed-stock fisheries have been a problem for a lot of years for management.

Returns below a minimum escapement level will result in complete closure of the fisheries on those stocks. The Nisga'a treaty for the first time provides a precise procedure for determining the number of salmon species that Nisga'a will harvest in any given year.

This chart shows for one species, sockeye, the relationship between the size of the return to Canada and the Nisga'a allocation and other commercial fishery allocations. So you can see at what point the fisheries are allowed. The bottom of that chart, the part in blue, is the escapement, the fish that go to the spawning grounds. Then you have the first part of the fishery occurring, a very small Nisga'a fishery, up to a level where their escapement goals are achieved. Both the harvest agreement fish and the general commercial fishery take over from that point.

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It shows very clearly that this arrangement is based on changes—the size of the entitlement changes with the abundance—and it shows you the relative portions at any given stock size. That's for sockeye.

A similar graph with just different axes and different numbers applies for chinook. The line I didn't mention on the first one indicates what the current estimates are for the average stock size for 1977 to 1997. As you can see, the average stock size for chinook is at a much lower level than that for sockeye.

The last component in the allocation is the fact that it is different for each species. The abundance of each species in the Nass area is strikingly different, and the arrangements reflect that. Sockeye and pink salmon are the two major stocks, and the other ones are much smaller.

These allocations, as you've seen up there, will assist Nisga'a and other governments in the development of fishing plans and the management of fisheries to prevent overfishing. The fact that the Nisga'a fishery is a communal fishery means the Nisga'a can implement more efficient methods than the current common-property fishery. These new fisheries include the use of selective fishing techniques such as fish wheels, traps, and weirs in terminal areas and make it possible for the Nisga'a to focus on the abundant stocks, thereby protecting the weaker stocks and species.

The annual Nisga'a allocation for each salmon species, as I mentioned, will increase and decrease with the abundance of the fish. That's stated in paragraph 14 of the treaty. This will provide additional harvesting opportunities for the Nisga'a in years of high abundance, when all fisheries have access to more fish, and reduced opportunities in years of low abundance, when everybody must cut back.

This relationship, coupled with the commitment not to overharvest Nass area stocks—and that's in paragraph 17 of the treaty—will provide a greater certainty that spawning goals will be met under the Nisga'a treaty than under the status quo. Healthy stocks will benefit the Nisga'a and non-Nisga'a users of the resource.

With regard to joint fisheries management, under the final agreement, fisheries management has been designed to include Nisga'a and be very adaptable in the process. The joint fisheries management committee is going to be made up of two representatives from each of the governments and will oversee all research, management, and harvesting plans for the Nass area.

Most of the details required to implement the fishery were not included in the final agreement. The parties believe detailed fisheries management must be permitted to evolve and that their inclusion in the treaty would create a barrier to this evolution.

A separate document, “Nisga'a Fisheries Operational Guidelines”, referred to in paragraph 75 of the treaty, provides details on the current fisheries management goals, the operation of the JFMC, stock assessment procedures, and annual Nisga'a fisheries management plans. The stock assessment and in-season fisheries management procedures described in the document are not theoretical ideals. These procedures have been implemented through the Nisga'a fisheries program for the past eight years. It is through that program that we were able to formulate these procedures.

The fisheries component of the Nisga'a treaty has been crafted to provide a framework within which fisheries management and stock assessment procedures, the ones developed through the Nisga'a fisheries program, can continue to thrive and develop.

The mechanism for continuing these programs obviously requires resources—money. This is the specific purpose for setting up the Lisims Fisheries Conservation Trust. The funds from this trust will finance the management program in the Nass area in perpetuity.

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As you have read in the treaty, it will be started with a $13 million contribution from the Nisga'a and the federal government. It breaks down the contribution of each party. The fund will further be built up by depositing resource rents derived from efficient fisheries harvesting and by contributions from corporations, organizations, and individuals.

We expect the fund to contribute $650,000 to $1 million a year to the fisheries management process. This fund will buffer the fluctuations and uncertainty in funding levels that would result if funding were entirely dependent on resource rents—revenues from fishing—or from typically short-term government programs.

In summary, the Nisga'a negotiations have provided a rare opportunity to improve our understanding of fish populations in the Nass area and consider real changes to the status quo. The award-winning Nisga'a fisheries program, currently in its eighth year, was initiated to address the information needs of treaty negotiations. This program has demonstrated the efficiency of using fish wheel technology for harvesting and stock assessments and has promoted the expanded use of these selective fishing techniques throughout B.C. The joint commitment of the Nisga'a and Canada to the implementation of the Lisims Fisheries Conservation Trust will ensure the key components of the Nisga'a fisheries program will continue.

As a witness to the last eight years of Nisga'a fisheries negotiations, I can say confidently that each party made significant compromises in this agreement. However, the one place where the Nisga'a flatly refused to compromise was on provisions that would protect the fish resource in the Nass area.

The Nisga'a have taught me to look at the long term, not just four to five years, but 50 to 100 years. The goal of the Nisga'a has always been to ensure the resources of the Nass area will be available for future generations, and this is clearly the goal of any responsible fisheries biologist. So my unequivocal answer to the question is, this treaty is good for the fish.

Thank you.

The Chair: Thank you, Mr. English.

Voices: Hear, hear!

The Chair: Ms. Logan, whenever you're ready, please begin.

Ms. Debra Logan (Land Claims Committee Chair, B.C. Shellfish Growers' Association): Thank you and good afternoon. Thank you all for being here.

This is the second time I've come before this committee on the subject of the Nisga'a treaty, or perhaps it was just treaties in general the last time. I appreciate the opportunity to do so again.

I represent the B.C. Shellfish Growers' Association. Members of our group grow and plant oysters. We don't harvest any wild product. We're farmers in the true sense of the word. We also farm clams, gweducs, mussels, and scallops. We use no fertilizers, no antibiotics, and no chemicals in the process of farming shellfish.

Our industry directly employs nearly 1,000 people and has an annual farm-gate value of about $16 million, all on less than 0.05% of the foreshore potential for growing oysters, clams, mussels, and gweducs in this province—0.05% of the potential growing land.

Given the ability to expand, our industry would provide lots and lots of jobs, and we'd do it in an environmentally responsible, sustainable way. A Coopers & Lybrand study done recently estimated that given the ability to expand, the shellfish farming industry has the potential to become a $100 million industry in this province, and that's just farm-gate value. When you extrapolate it through the seven times multiplier, it becomes a very serious contender in the world of trade.

Access to new sites is our most limiting factor for growth and the ability to provide these jobs for, in great part, many displaced fishermen in rural communities on the coast.

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Why are we restricted? Why is there a soft moratorium on allowing our industry to grow? For two reasons.

First, the overarching title for shellfish farming is aquaculture, and that smells a little bit like salmon farming, so don't let them expand. We overcame that one several years ago, at least with respect to the province. Of course DFO never changes their mind on anything and they're not accountable to anyone. Certainly the province changed their mind years ago on that one but couldn't seem to go anywhere on it.

The other reason is treaties or anticipated treaties. Given the provisions set out for intertidal and foreshore rights in the Nisga'a treaty, stalling our industry was a necessary decision on government's part, I'm sorry to say. The Nisga'a treaty gave the Nisga'a people, and I quote from paragraphs 64, 65, and 66 on page 112 of the Nisga'a treaty, “the right to harvest, for domestic purposes, intertidal bivalves” within a 71.13-square-kilometre area.

I quote again:

The Minister will not permit commercial harvesting of intertidal bivalves within those portions of the Nass Area.

That's referring to the non-Nisga'a commercial fishery, and that's on page 112 of the agreement.

Under the treaty then, the ability of Canadians to lease, after due process, any aquatic land in this area is gone.

When this issue was discussed at the Fisheries Sectoral Committee of the Treaty Negotiation Advisory Committee in the spring of 1998, the consensus was that the notion of excluding aquatic land from the potential process of leasing for aquaculture purposes posed a very serious precedent and should not be contemplated by either government. This recommendation was ignored by the negotiators and government.

One of the reasons given by negotiators for offering this right to the Nisga'a was that, from the government perspective at least, there's very little value to this aquatic land. This is true at this point in time, but historically the area produced huge quantities of clams. There were five canneries in that region specifically for clams at one point. The low value argument is fallacious and should not be legitimated by this treaty. Who knows what's coming down the road? With global warming, global cooling, and El Niño, conditions change. It could be an enormous opportunity for all Canadians, locked up.

Sections 2, 5, and 8 of the statement of interest for the treaty negotiations process provided by my group, the B.C. Shellfish Growers' Association, say that access to new sites must be ensured; that government must retain all management and licensing responsibilities for shellfish farming; and that while creating economic opportunities for first nations, treaties must not cause a job loss or loss of opportunity for non-native Canadians.

In practical terms, the B.C. Shellfish Growers' Association has little interest in the 71.13-square-kilometre area claimed by the Nisga'a. This treaty, however, will form the baseline of rights accorded to other first nations in B.C., and this is of great concern to the Shellfish Growers' Association, because the settlement of at least 15 other treaties on the coast of British Columbia will probably also include rights to harvest shellfish that will exclude commercial fisheries and by extension shellfish farming potential.

Our statement of position, referring again to the Shellfish Growers' Association, states that we support the establishment of treaties. We also support the economic development of first nations and recognize the importance of this aspect of treaty-making and the attendant goal of self-support. We do not support, however, the establishment of zones where the ability of most Canadians to engage in an environmentally responsible industry is limited due to their lack of correct racial background.

The B.C. Shellfish Growers' Association believes settlements should recognize aboriginal culture and heritage, encourage and enable natives to become self-supporting, and place natives on an equal footing with other British Columbians and Canadians.

Now I have another couple of comments I'd like to make on a slightly different subject. I want to express my sympathy for Mr. Barton and his frustration in trying to convey to you all where he comes from. I've met several times with groups in other areas of British Columbia, as well as people from this area—people who are on the outside of the power structure within first nations, people who can't get the accountability that is theoretically available to them. These are people who live in rusty travel trailers on reserves because they're outside the power structure. They're not the people who will be awarded houses, because they don't sing from the right song sheet perhaps.

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These people's children won't be educated via the largesse of the taxpayer. In many cases they live in fear. That is the level of corruption in some places. I'm not suggesting this is the case in the Nisga'a territory.

By taking Mr. Barton's comments as you did and arguing them down, in my mind what you did was you discounted his concerns. They are very real and they don't deserve to be discounted.

I think that, without exception, every newspaper you pick up will give you another account of problems in this area, and that is just the tip of the iceberg. It's a little easier for me to say this because I come from a first nations background. I've been in both positions inside and outside the power structure. It's not a comfortable place to be on either side, but it certainly is more lucrative to be on the inside. I won't say any more on that subject.

Finally, notwithstanding Mr. O'Reilly's unwillingness to meet with this group and to come to B.C., and also Mr. Bonin's very real concern about a lack of being in touch with the electorate, with the people he represents, this could be a good opportunity to short-circuit the usual filtering process that is present between an incredibly busy MP and his electorate, or the real people, as is the case here, coming in the door to talk to you.

I regret that the Liberal Party takes the view that this is a deal already done and that you're wasting your time here. I regret that you've wasted our time in that respect as well.

I would like to thank the Reform Party for at least working to accord us this opportunity. Thank you for your efforts on that.

With respect to the problem of who gets to speak to this committee in the next week or whatever, I would suggest that if Mr. Hunter or Mr. Hogan were accorded an opportunity, we would be perhaps prepared to withdraw our concerns about a selected list of speakers chosen for their favour of the Nisga'a treaty. We would be prepared to withdraw those comments.

The Chair: Thank you, Ms. Logan.

Mr. Copes, please.

Professor Parzival Copes (Individual Presentation): Thank you, Madam Chair.

[Translation]

I apologize for not making part of my presentation in French. Unfortunately, I don't know French well enough to express myself easily and clearly in that language. That's why I will speak English. I don't think that will be a problem because we have good interpreters.

[English]

The question before us is whether the fishery provisions of the Nisga'a Final Agreement are such that they should be approved by the House of Commons.

Before I offer my opinion on this, I believe it is important to review briefly some of the relevant historical background. The Nisga'a form a distinctive community that has retained its language, culture, and kinship structure. Since time immemorial the Nisga'a have lived where they now dwell on the Nass River. Prior to European contact they had a well-developed, resource-based economy that provided them amply with easily obtainable necessities of life, as well as a surplus for trade with their neighbours. This provided them with a high level of material comfort by the standards of their place and time. It also allowed them the leisurely pursuits of ceremonial feasting and gifting—the potlatch—and facilitated an impressive development in artistic expression.

Bountiful supplies of salmon were among the most important resources to the Nisga'a, as they were to many other aboriginal tribes living along the great salmon rivers of British Columbia. However, in the 1870s, in the interests of a newly established canning industry, the Canadian government severely restricted aboriginal river fisheries for salmon in B.C., limiting them to the supply of household needs and outlawing the use of productive gears such as weirs and traps.

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The tribes concerned were prohibited from selling or trading salmon as they had done in the past. Their traps and weirs were destroyed. Over the years their access to other resources of the lands and waters in their traditional territories was also severely restricted, contributing to their impoverishment and causing many of their communities to descend into social dissolution and despair.

Not surprisingly, the courts have found the Canadian government in default of its fiduciary responsibilities towards aboriginal peoples in British Columbia. They also have determined that B.C. tribes have wrongfully been prevented from exercising resource rights that are unextinguished and that it's incumbent upon government to settle aboriginal claims to these resources. This is the context in which I will now offer my commentary.

My opinion regarding the support that should be accorded the fishery provisions of the Nisga'a Final Agreement is based on five considerations, which I shall put in the form of questions.

This is my first question. Do the fishery provisions of the agreement contribute significantly to historical justice in restoring to the Nisga'a resources on which they have been strongly dependent in the past, out of which they were subsequently wrongly deprived by government action? And my answer to this one is simple. Based on historical considerations that I've just outlined, I consider the answer to this question to be a clear yes.

This is the second question. Are these fishery provisions likely to contribute meaningfully to economic viability for Nisga'a communities? My answer to this question is that the Nisga'a live in a relatively isolated part of British Columbia where unemployment in aboriginal communities is in the range of 45% to 86% and where the obvious opportunities for economic development are primarily resource-based. Cultural history, local experience, developed skills, life-style customs, resource availability, and direct food-supply dependence all point to the salmon resource as a natural focus for economic activity for the Nisga'a.

The agreement provides for an annual average allocation to the Nisga'a of 26% of the allowable catch of Nass River salmon, which will offer only a modest amount of additional employment. However, it is anticipated that a further financial arrangement outside the treaty process will provide for funding to buy additional access rights in the commercial fishery sector. In my view, the fishery provisions of the agreement or something of a similar nature are an essential component in the quest for a viable economic base for the Nisga'a.

This is the third question. Can the fishery provisions of the agreement be reconciled with the equitable treatment of other fishery stakeholders having an interest in the British Columbia salmon resource? The assignment of additional salmon catches to the Nisga'a, at least in the short run, involves a transfer of harvest allocations from other fisheries sectors and specifically from the small-boat commercial sector.

As a former salmon fisherman in a family fishing enterprise, I am acutely aware of the implications. Most of my current work is also devoted to research and speaking engagements in support of independent small-scale fishery sectors in Canada and in many other countries.

I must emphasize that today's fishermen in British Columbia are not responsible for the injustices committed by the confiscation of aboriginal fisheries a century ago. They should not have to pay for the restoration of these fisheries.

Fortunately, a fair solution is at hand. There are two sources of additional fishing room for aboriginal communities that may be phased in fairly quickly without impinging upon the catches available to individual non-aboriginal fishermen. One source is additional production from government-funded enhancement operations. The other is the fishing room created by the voluntary retirement of non-aboriginal fishermen prepared to sell their fishing licences to the government. Indeed, it has been a stated policy of the Canadian government that reallocation to aboriginal communities is to be achieved by these means. Provided that government is held to this commitment and applies it fully and fairly, reallocation may be achieved with equitable treatment of all stakeholders.

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My fourth question is this. Are the fishery provisions of the agreement compatible with good resource conservation standards, or, better still, may they contribute to improved conservation? Traditionally, aboriginal river communities made extensive use of weirs, traps, impoundments, dip nets, and bag nets. All of these caused little loss of fish dying uncaught after being wounded by contact with gear. This is in contrast to what happens with hook and line, gaff, and gill-net gears. A return to the traditional, conservation-friendly gears that were previously outlawed, as well as experimentation with new ones, is being encouraged by fisheries managers and welcomed by many aboriginal communities.

Making excellent use of new opportunities, a Nisga'a fisheries program, in collaboration with DFO, is using fish wheels. These allow for the capture and sorting of migrating fish, with live release of fish from identified weak stocks. This permits a greatly needed increase in spawning escapements of weak stocks, together with more effective culling of strong stocks, with both contributing to improved conservation and larger sustainable catches.

The Nisga'a fisheries program has been recognized by the award of the Department of Fisheries and Oceans management prize in 1995.

The additional harvest assigned in the Nisga'a Final Agreement will permit the selective fishing program to be carried out on a larger scale, allowing further rebuilding of weak stocks and contributing to greater sustainable salmon catches from the Nass system.

A most important conclusion can be drawn here. An initial allocation of some additional harvests to selected river fisheries may be used to fine-tune spawning escapements while maximizing catches surplus to spawning requirements. Both will contribute to greater sustainable production of salmon from a river system. The greater catches that are then allowed may change the initial reallocation of harvest from the zero-sum game into a win-win outcome, with substantially greater total catches in which all stakeholder groups may share.

In my opinion, we should applaud and encourage the Nisga'a in the selective harvesting program and support the fisheries provisions of the agreement that will allow them further success in rebuilding Nass River salmon stocks, to the benefit of the resource and all who depend upon it.

My last question is this. Are the fishery provisions of the Nisga'a Final Agreement good for the people of Canada, including specifically the people of British Columbia in this instance? In other words, are they in the public interest? Given positive replies to the preceding four questions, several important reasons for answering this last question affirmatively have already been established, but let me add a few further positive considerations.

The Supreme Court of Canada has recognized the pre-existing rights of native peoples and has emphasized that acknowledgement of their aboriginal rights is the means by which their prior occupation of the land is reconciled with the assertion of crown sovereignty over Canadian territory. The Nisga'a Final Agreement provides for settlement of Nisga'a aboriginal rights in respect of fisheries. It gives certainty regarding the process and terms whereby actual harvest allocations to the Nisga'a will be made from time to time, and thereby provides a matching degree of certainty regarding harvest resources available to other groups. The agreement removes the open-ended priority entitlement of the Nisga'a to food fish and places the fulfilment of Nisga'a harvest entitlements at the same level of priority as commercial and recreational entitlements of other groups, thereby removing some of the greatest irritants to other stakeholders.

The Nisga'a Final Agreement is about meeting the rightful entitlements and real needs of the Nisga'a people. My unequivocal conclusion is that the fisheries provisions of the agreement deserve the full support of the House of Commons.

However, in closing, I would like to return to my broader concern with the public interest, and particularly with my interest in the welfare of all of the fishermen of British Columbia. I will do so by citing an obscure yet potentially very important passage from the Gladstone case that is illustrative of the wisdom of the Supreme Court in recognizing the need to balance and reconcile group interests in our complex Canadian society. As it indicates, non-aboriginal groups may also appeal to the courts for recognition of fishery rights on the basis of economic and regional fairness and in relation to historical reliance on the resource—a proposition that I have repeatedly raised and supported in both the Canadian and international contexts.

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The quote is:

Aboriginal rights are a necessary part of the reconciliation of aboriginal societies with the broader political community of which they are part; limits placed on those rights are, where the objectives furthered by those limits are of sufficient importance to the broader community as a whole, equally a necessary part of that reconciliation.

And here is the most important part of the Supreme Court statement:

With regards to the distribution of the fishery resource after conservation goals have been met, objectives such as the pursuit of economic and regional fairness, and the recognition of the historical reliance upon, and participation in, the fishery by non-aboriginal groups, are the type of objectives which can (at least in the right circumstances) satisfy this standard. In the right circumstances, such objectives are in the interest of all Canadians and, more importantly, the reconciliation of aboriginal societies or the rest of Canadian society may well depend on their successful attainment.

Thank you.

The Chair: Thank you.

We'll go for our first round of questions. Mr. Scott.

Mr. Mike Scott (Skeena, Ref.): Thank you very much.

I'd like to thank all the presenters here for coming today, and I'd like to direct my question to Mr. Eidsvik, first of all.

Mr. Eidsvik, you talk about the concerns your group has with the treaty, and you also talk about the industrial solution. I think we all understood that very clearly. Could you give the committee some idea as to your concerns. I know it's not the Nisga'a treaty per se—at least, I believe it's not the Nisga'a treaty per se—that causes you your level of concern, but that the ingredients particularly with respect to fisheries will be repeated in other treaties. Have you done any kind of a projection as to what the commercial fishing sector of British Columbia might look like 10 or 15 years down the road if this is replicated in other treaties with coastal bands in British Columbia?

Mr. Phillip Eidsvik: That's a pretty good question. The TNAC, the Treaty Negotiation Advisory Committee that I referred to earlier, insisted—well, as well as they could insist—that a study be done assessing the impact of the Nisga'a precedent if you took it and applied it coast wide in British Columbia. Unfortunately, the federal and provincial governments have refused to release that study. We know all the answers to this question, but we're not allowed to see them.

Stewart Bell, from the Vancouver Sun, submitted an access to information request and he got 300 pages. Every single one of those pages was censored in its entirety except for the title page. We know there's a study out there. We know what's going to happen to us. We're going down while this federal government and the provincial government refuse to let us see the study. They insist on keeping it secret.

Mr. Mike Scott: Just to be clear then, you know as absolute fact that there was a study done. It was done by the federal government and the province on the implications of the provisions in the Nisga'a treaty and how it would affect the commercial sector in the long haul. That study was done some time ago—maybe you could give us an idea of when—and you also know for a fact that the government is refusing to release the details of it.

Mr. Phillip Eidsvik: Yes, the study was completed by Dr. Mike Shepard, who was retained by the Department of Fisheries and Oceans and the Department of Indian Affairs to do the study. What happened was the Nisga'a then became involved in the study, so it became part of the list at the negotiating table and thus it was granted secrecy. They were able to keep it secret because it's part of the negotiating record. The study, as I understand it, was done in about 1996. Again, it was talked about in 1993, but it's entirely secret. Of course I can't tell you the date on it because the date was censored too.

Mr. Mike Scott: Debra, maybe I could address one question to you, because I was very intrigued by your remarks. Of course, I've been involved in that myself extensively for the last two and a half or three years, over the fact that many native people living on reserves become disenfranchised in their own communities.

• 1700

I wonder if you could give us your point of view, and not specific to Nisga'a, with regard to these kinds of treaties. Do you think this is something the average person would benefit from? Do you think the average native person living in a reserve community would find that their lives have improved significantly or substantially as a result of this kind of treaty?

Ms. Debra Logan: Thank you, Mr. Scott. That's a very difficult question to answer, because I think it varies from band to band and nation to nation.

I'll give you one example. I have two aunties living on the Sarita Reserve on the west coast of Vancouver Island. The federal government was issuing their pension cheques, and they were getting $400, or whatever it is, in old age pension. Then along came self-government, and it was determined by the tribal council that they needed only $300. Now they need only $200, apparently. Yours truly makes up the difference, after I've paid taxes to help pay pensions for someone else. While I'm at it, I also supply their fish. There's a commercial fishing agreement in that area, so there's no food fish for old people either.

In terms of a general statement, I don't think I could make one, because I think there are probably groups out there that will benefit. There will be fairly administered treaties, and maybe this one right here, on the top left-hand corner of British Columbia, is going to be one. Who knows? I certainly don't. I don't know enough about this particular group, and that's why I have to present my comments in a more general fashion.

I also know that for the most part the people I speak with see the treaty process as perpetuating some of the problems that are already there but with even less accountability to the Canadian public for the way dollars are spent and decisions are made.

The Chair: That's all of your time, Mr. Scott. We're in overtime, actually.

Mr. Bachand.

[Translation]

Mr. Claude Bachand (Saint-Jean, BQ): Ms. Logan, my question is for you.

I would like to begin by saying that it is very important for us that this consultation take place because it will test the arguments which are constantly raised. It's normal that I address my questions to people who do not share my opinion. That's why my questions will be mostly directed to Ms. Logan and Mr. Eidsvik. I will do so respectfully, since I believe this is the place to do so and that it is important we have this exchange for our mutual benefit.

I would like you to tell me what you think of the following. There are two ways to solve a problem when a fence does not respect the property line: either you negotiate with your neighbour or you take him to court. I often have discussions in caucus with my colleagues from the Bloc Québécois, two of whom can attest to that here.

It seems that whites are not faring well in the Supreme Court these days and that they have been put in a position to negotiate every single issue affecting natural resources, including fishing. There are no doubt many people in this room who know one of those responsible for creating this situation. I'm referring to Frank Calder, who was the first to rule that natives had ancestral rights because they were here before us.

When you look at the other Supreme Court rulings and the cases still before the courts, it seems that the score is 50 to nothing in favour of natives. Some of these rulings include Calder and Gladstone, which Mr. Copes quoted. Other such rulings are Delgamuukw and Marshall, the most recent and important one, giving natives the right to fish for a decent livelihood.

In my opinion, the longer we wait to negotiate with native people, the more the Supreme Court will rule against us. I want to know what you think about this.

• 1705

In my view, the only solution is to negotiate. I respect negotiation, especially if it involves three parties over a long period of time. The treaty addressed every issue. You can disagree with it, but you have to look at it in the context of other Supreme Court of Canada rulings and other courts. I want to know if you prefer maintaining the status quo, which would result in the Supreme Court of Canada handing down even more rulings against us in the future. When the Supreme Court has ruled in favour of someone, the RCMP cannot arrest him, since the highest court in the land has ruled in his favour.

What do you prefer: negotiations or a court battle?

[English]

The Chair: Ms. Logan.

Ms. Debra Logan: That's a good question, but it's not one I'm able to answer. It's not my area of expertise. But I will say this. If we need to negotiate because we think we'll get a more favourable deal out of it as non-aboriginals, is it honourable to do that? Is it not more honourable to let Ms. Blind Justice do it?

That's a question I can't answer. That's a thing I'll leave up to you folks.

I agree that the Supreme Court has made some decisions that certainly are awkward, but inasmuch as I must admit I don't like those decisions, I respect them, and I don't have to wonder what political forces formed the mandate of the negotiator who caused those decisions to be made.

For instance, inasmuch as the Nisga'a treaty was secret when it was being negotiated, the amount we did know about it, and were—I use this word advisedly, “consulted” about it. I say that as a member of the treaty negotiation advisory committee here in British Columbia. There was some very strong and we felt constructive advice on many issues, not just fisheries, that was taken quite seriously by our provincial government, which tends to be a little more grounded in the reality on this coast.

I must admit we knew all along that our federal negotiators had a mandate that was not in tune with the spirit of British Columbia, and in some senses perhaps the judiciary would have done us a favour in making sure that it was without prejudice, even handed.

Mr. Claude Bachand: Is it over?

The Chair: No, you still have two minutes.

[Translation]

Mr. Ghislain Fournier (Manicouagan, BQ): My question is for Mr. Eidsvik, but if anyone else wishes to respond, please feel free to do so.

Every witness we have heard from until now has spoken of consultation. This morning, someone told me that the Nisga'a treaty only concerned the Nisga'a, whereas others told me that it also concerned the people of British Columbia as well as all Canadians. Other witnesses told me that consultations would only be held after the fact. The deal was done and consultations took place as they do in the Far West meaning that you shoot first and ask questions later. Now we are wondering whether we did indeed reach a good deal.

In the spirit of fairness, do you think that British Colombians should have been or should be consulted through a referendum or by any other means which may be better than a referendum, if such a thing is possible? Is it their business or should it be up to politicians to decide, since they were elected to govern and only want to consult some members of the public? But shouldn't British Colombians be consulted first? Don't they all live together? Won't they end up paying?

• 1710

I feel those are the main concerns you raised this morning. Some have said that the committee blamed—

[English]

The Chair: This is getting to be a long one-minute question.

Mr. Eidsvik.

Mr. Phillip Eidsvik: I'll try to keep it to a one-minute reply.

Our position has always been that if we had a referendum and the people of B.C. voted in favour of this treaty, then we would pack our bags and we'd go home. There's no question that this being the first treaty and the most important one, we deserved a provincial referendum on it. The Nisga'a didn't have to trust their politicians to get them a deal; they had a fair vote.

I guess the way to compare it would be say the federal government and a select group of people in Quebec secretly negotiated 25% to 50% of the fish around the Gaspé and gave it away. How would you people in Quebec feel, and how would your fishermen feel? I think they'd probably be doing more than sitting here talking. I think they're a little tougher than we are.

On the point of negotiation in courts, in Sparrow the courts said they would decide these issues on a case-by-case basis. The court recognizes there will be a future role in deciding the limits and extent of aboriginal rights. You're not a bad guy because you go to court and have these questions decided. Our industry, and the association I work for, has spent about $2.5 million on litigation on these questions of aboriginal rights.

We've been in the Supreme Court of Canada on all these important cases. To tell you the truth, I think the Supreme Court of Canada, with the exception of a sloppy Marshall decision, has done not a bad job. We've gone in there because we didn't trust the federal or provincial governments to represent the interests of the people, and we found the court to be very receptive to our arguments. I'm quite content to litigate any issue in the Nisga'a treaty tomorrow and put it to the court's judgment, providing we're in there having our say.

On the east coast, nobody from the fishing community was in that case. They left it up to the federal government, didn't put in as good a legal team as they should have, and didn't hire the right expert witnesses, as they should have. They did a lousy job. They lost the case. We learned that experience in Sparrow at a lower court, and after that we said we would never let a case affecting us go to court without our intervention. Again, the Liberal government ignored the needs and the possible consequences of the Marshall decision.

I hope that's a one-and-a-half-minute answer.

The Chair: Maybe I should just clarify that these rounds of questioning are going on until 6:30 p.m., so there'll be many opportunities back and forth. It's just that we try to do our questions and answers in the five-minute time allocation so that people can follow up in an orderly fashion.

Ms. Hardy, it's your turn.

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

I'm from the Yukon, and right now modern-day treaties are being negotiated, signed, and implemented. I'd like to give you an example. Twenty-five years ago there were three first nations graduates. At the last graduation, because of the efforts of their bands, there were over 200 first nations students graduating. There were at least 50 who had gone to university and were back working in their communities, because that's what their communities identified as being really important. I'm really worried that what you say as a witness, even though you said you didn't mean it, is painting everybody with the same brush, saying that first nations bands are corrupt and don't look after their people, when I know that the bands I'm familiar with work very hard to look after their elderly and their young and make sure they have a continuity for their development.

I'd also like Debra Logan, particularly, to know that I wasn't dragged here kicking and screaming to listen to witnesses. As a matter of fact, as a member of Parliament this is one of the most important things I do to hear what people have to say, and that is what has educated me.

I'm worried when I hear that these are race-based decisions. Canada is engaged in negotiating a free trade agreement of the Americas, and it just happens that there will be Mexican people there who are of a different race from us. But we don't identify those treaties, whether I agree with them or not—and I'm not much in favour of free trade agreements—as race-based treaties.

• 1715

I think I would like Mr. Eidsvik to comment on his use of “race-based”, because I feel you don't recognize that first nations have a right. If you had been kicked out of your home and you were allowed to negotiate to get back in but were only allowed a room in the basement, you wouldn't see that as fair. In fact, they do have rights, and that's what the negotiations are trying to address—returning at least some of those rights of people, not based on race, but based on the fact that they were here first, and that our courts have recognized they have those rights. That's what the treaty process is about.

Mr. Phillip Eidsvik: I'd be happy to address that. When Canada negotiates a free trade agreement with Mexico, they negotiate on behalf of all Canadians. My ancestors are from Norway. They came here to fish. Canada is negotiating on my behalf. They are also negotiating on behalf of the Nisga'a, the Nuu-chah-nulth, the Chinese immigrants, and the Vietnamese.

What everybody forgets is that the commercial fishery in British Columbia is unique. The Supreme Court of Canada said the commercial salmon fishery in B.C. was created by European contact. They said that in Van der Peet and they said in N.T.C. Smokehouse on August 23, 1996.

For me to participate in the Nisga'a treaty I have to be approved by the band, and they will decide whether, for one reason or the other, I will be a Nisga'a. Now that's race. It may not be nice. It may not be comfortable. It may not be politically correct to say it. But that's race, and it's wrong.

I'm saying we have another model in the commercial fishery here in which every Canadian, no matter what type they are, gets to participate on an equal basis. As Mr. Copes noted, the Nisga'a will increase their participation in the commercial fishery by buying some licences from people that I hang out with, and transfer them to the Nisga'a for use in the fishery, on the same rules, fishing together like friends, as we've done for over 100 years.

In northern B.C., Prince Rupert specifically, the area most affected, 60% of the commercial gill-net licences are held by the aboriginal community. More than half the people who work as shore workers are aboriginal. A fishery allocated to the Nisga'a...all the fish come out of that pot.

There will be native fisherman—and I think the one who strikes me most is Hutch Hunt, who is a native from Port Hardy. He has a northern seine licence, or had. I was at a meeting with him with Minister Anderson—we were there together supporting each other—and he said “I'm the chief in my area. In 1992 I spent $1.5 million building myself a brand-new seine boat. I support five families—the crew working on my boat—and now you're telling me, Mr. Minister, that you're going to take fish out of our fishery, reallocate it to separate native fisheries up and down the coast. You're telling me that I did the wrong thing by buying into the economy, into the commercial fishery, like all other Canadians. I don't need special help. I'll go fish anywhere on the coast against anybody and beat them.”

I don't think that was a bad model. I thought that was a model we could be implementing in other areas. That's the model that should be implemented on the east coast, because of the Marshall decision. It's the model that other industries could look forward to. We're not saying no economic opportunity for the Nisga'a. We're saying come on, get as much as you can, fish as hard as you can. I'll fish alongside you. I'll try to beat you and you can try to beat me. I think that's a model to be proud of.

The Chair: You have about a minute, if you'd like it.

Mr. Keddy.

Mr. Gerald Keddy (South Shore, PC): I was just wondering where to head with my line of questioning, because there are a number of issues that have been brought up here. I think I will reiterate one statement certainly that Ms. Hardy made, which is that she wasn't dragged here at all. I don't think any of the members of Parliament were dragged here. The fact that we came here of our own accord to listen to people's grievances and discussion on this treaty I think is commendable, and we should be here. I'm not trying to speak for the government side of the table, but I think they came here in good faith as well, understanding that the treaty has been signed and that there is very little opportunity to change it. We all understand that. That doesn't mean we shouldn't go through the process. And I guess if you could get all three parties in the agreement to agree, the treaty still could be changed and amended. The likelihood of that happening, in all honesty, is very little.

• 1720

I have a couple of questions about the fishery. It's important that people in the room understand that I represent the South Shore, what we often call the largest fishery riding in Canada. The last time we checked, it was still the largest fishery riding in Canada. There are 1,800 boats, there's an offshore scallop fleet, we have the offshore lobster fleet, and we have the eastern Arctic-based shrimp fleet, or at least a big portion of it. Certainly our aquaculture industry in Nova Scotia is not developed. It's fairly well developed in New Brunswick, but it's not in Nova Scotia.

Despite all the doomsday warnings you've heard—although there's a lot of truth to them—we still have an inshore fishery in Nova Scotia. It's depleted. It's not the inshore fishery it was, but certainly we didn't suffer the cod collapse they suffered in the bays and ports in Newfoundland, because we have a different type of fishery.

After saying that, I've not spoken once to any fishery group that's been in agreement on how this fishery on the east coast should be run. Everyone has their own ideas and their own predictions for the future. We have quota groups in eastern Canada that believe in community quotas. We have groups that want to have the old race for the fish, where the best and the fastest and the strongest get there first, catch the fish, and come back to port.

I'll be perfectly honest. I have family members who've worked in the fishing industry, and I know a bit about the fishing industry myself, but I'm a farmer and a logger. I'm not a fisherman. However, after saying that, there is no agreement on how we should go about managing the fishery in the future.

I agree with Mr. Eidsvik on two things he said: that we should have one set of rules and regulations for everyone and that we should have a fishery at the end of the day that, understanding that the Nisga'a will get a certain portion of this fishery.... They certainly are not getting it all, and they're not cutting out other people from being in the fishery, and as I read this and understand it, they're not cutting out the commercial fleet. It's a re-sharing of the resource, if you like, but I don't see any one group being completely shut out of this fishery.

I want to ask Mr. Eidsvik a question, because of the concerns he's raised.

If you review the recommendations of the Joint Fisheries Management Committee, it says in there that requirements for integration and efficient management of all fisheries are part of that. That's a responsibility of the minister. In my reading of that, I would think that is still the responsibility of the minister.

At the end of the day, the minister can implement rules that all groups would fish at the same time, understanding that in other places in Canada and in B.C., I'm sure all groups don't fish at the same time. I can't speak for B.C., but in Nova Scotia we have different rules for 4X, we have different rules for the nose and tail of the Grand Banks, we have different rules for the nose of George's Bank, we have different rules for the Flemish Cap. We have different rules for every aspect of the fishery and different seasons. Fishermen from other areas who have a licence in that gear sector, no matter where they're from, can only fish at that period of time. And if you don't have a licence in that gear sector, you can't fish at all.

So there is no free and open access to fish for Canadians. You have to be in the sector or you have to buy a licence from someone else.

The other point you made is that if we're taking non-native commercial fishermen out of the sector, out of any sector, then the federal government has an obligation to buy those licences. I agree with you absolutely. But do you not see within the agreement itself room for the federal government to regulate the fishery and regulate the rules, based on input from the Nisga'a and input from other parties?

Mr. Phillip Eidsvik: The minister does have the power to intervene and give written decisions after the recommendations of this new management board that's to be created.

• 1725

It's bulky, for starters. We're not that happy with that type of fishery management model. A big part of the problem is especially if you look at it in terms of British Columbia, not just the Nisga'a.

Fraser River sockeye hit B.C. Their first landfall is usually the tip of the Queen Charlotte Islands, Haida territory. Then they work down the west and east coasts of Vancouver Island—Kwakiutl and Nuu-chah-nulth. Then they head towards the Fraser River, where we have the Tsawwassen, Burrard, Musqueam, Coquitlam, and 97 other aboriginal bands on the way up the Fraser River.

So you have a situation where if the Nisga'a treaty precedents applied, a whole different selection of groups would be deciding on when and how they're going to fish, and the minister would be trying to respond back to them all. We have a similar problem to that. It's called the U.S. salmon treaty, where we have two groups, just two—not 97, two—that can't agree how to fish.

We share the interests of your fishermen back there. We are not very happy with DFO. We don't think they do as good a job as they could. Up until 1990 we thought we had the best salmon managers in the world here. Then we had a program instituted in 1992 that's knocked that astray.

Be that as it may, you need one manager. Somebody has to say “Stop fishing.” To balkanize the fishery management and make it very bulky so that you have boards here and boards there is simply too difficult. We would rather see proper financing given to DFO scientists. Give them the money they need. We would also like to see proper financing given to groups such as the Nisga'a, who have been doing that work for eight years. They don't need a treaty to continue it. They've done it for eight; they can continue on. And we'd like to see proper money given to our DFO enforcement officers. I think you hear lots of complaints back east about this.

There has to be one manager. We fear that without that, the fishery is doomed. Certainly our experience on the Fraser River has not been a happy one. A lot of us were tied to the dock this year, for the first time in history.

The Chair: Thank you.

Your time is up now, Mr. Keddy.

Mr. Bonin, commencez, please.

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

We have a good history of honour in this country. Many of us remember hearing our parents, grandparents, or great-grandparents say “We made a deal on a handshake” or “His or her word was gold”. Our ancestors reached agreements. They sat and talked for a long time, and they negotiated agreements. I for one, in honour of my ancestors, will honour their treaties.

My question is to Ms. Logan and Mr. Eidsvik.

You both made reference to referendums. Do you believe it's just and right for the majority to have a referendum, to make a decision on whether to modify or take away acquired rights of the minority without their consent? That's what we're talking about today—acquired rights. We're talking of a referendum by the majority to take away those negotiated acquired rights. Do you believe that's correct?

Mr. Phillip Eidsvik: Acquired rights. Well—

Mr. Raymond Bonin: In the honour of our tradition.

Mr. Phillip Eidsvik: In the honour of our tradition, when my father went and cut a deal with his neighbour, he kept in mind the impact that decision would have on my family, and he would come home and talk it over with the wife. If it was a big decision, maybe there would be a family meeting.

In this case, we have a father who comes from Ottawa, 3,000 miles away, cuts a deal, flies back to Ottawa, and we never see him again. The family is out sailing in the wind.

In the early stages, on behalf of our 8,000 members, I personally wrote to both the premier and the prime minister and said “Please don't sign this deal.” I said “You cannot deliver this deal without confrontation and dividing our communities for the next 500 years.” They ignored that.

So now what you're telling me is that I'm supposed to lose my job and our members are supposed to be thrown out of work because Ottawa politicians cut a deal without checking with the people affected. I don't think so.

• 1730

The Chair: Ms. Logan, if you wish to reply, go ahead.

Ms. Debra Logan: My understanding of the purpose of negotiating treaties with first nations at this time in our history is that it is to address present and future needs. It's a commonly held conception that we are also addressing past injustices, but I've cleared this up several times with several ministers. In actual fact, past injustices are not the basis on which treaties are being negotiated. Past injustices are being dealt with in other ways, one of which is the courts, as is the case in the residential school problems.

Having said that, we're going forward. We're not trying to assign a price to the past and compensate for it. We all have to live here.

With respect to a referendum, I've done a fair amount of travelling in the world and I believe this to be true: Canada has a reputation for being about the most fair-minded, level-headed, kind nation in the world. I'm very proud to sew our flag on my backpack, and no, I won't sell it to an American. I've been asked to a couple of times in Europe.

If treaties are properly consulted on and properly communicated, I give the Canadian public credit for being fair-minded enough to endorse them. If treaties are done in the fashion they have been, where the NDP government invokes closure, where the consultation was in actual fact farcical—and as I understand it the Liberals are about to invoke closure—then no, the Canadian public probably won't support it. It may be a good deal, but unfortunately we like to have things laid out so we can judge them on their merits, not get told how good they are for us.

Mr. Raymond Bonin: So what we're saying is that when these treaties were entered into, when they were negotiated, the white negotiators didn't think of the future. But before sharing this wonderful country with us, before agreeing to share forever, with total strangers, the first nations made an intelligent decision: they talked it out. They knew exactly what they were doing.

But I maintain that they knew what they were doing because they trusted the white people to honour their commitments. What we're starting to say now is that times have changed. Well, damn it, a deal's a deal, and if it is meant to change when times change, you put a deadline on it, a sunset on it. There is no sunset on treaties. That is the issue here.

The Chair: Thank you.

We'll start the second round now, across the table with Mr. Gouk.

Mr. Jim Gouk (Kootenay—Boundary—Okanagan, Ref.): I'd like to clear something up. We're not trying to change treaties. There are no treaties in British Columbia, which is part of what we're dealing with.

In terms of B.C. as the bad guys because we're the ones that didn't sign treaties and everybody else did so they're the goods guys, the principal thing you get out of a treaty is the reserve land. Maybe it wasn't done very fairly. Looking at history, I'm a little embarrassed by what we did at times.

There are approximately 2,400 reserves in Canada and two-thirds of those are here in British Columbia. So we may not have been signing treaties per se, but we also weren't ignoring doing things—albeit maybe not very generously—that other provinces were doing through the treaty process.

We have a situation now where...should one side stay the same and not be affected by the changing times? I submit to you that not very many years ago if someone had said that one day a man would walk on the moon, they'd have laughed. There are only so many things you can imagine. It's so easy to stand in the present day and look back and say “They should have known something would happen”, but I'll tell you, when you're back there looking forward, it's not the same.

• 1735

I think we're at a position now—and I think it's been said quite well here today—where we must have treaties that both sides can accept, and you get that when both sides are consulted.

There are two sides in the Nisga'a treaty. There are the Nisga'a people, who are looking to get certain rights established, re-established or whatever, to get certain compensation for things that have been done to them in the past. Those compensations, those rights to land, the money, the fish, don't just come out of the air. Somebody has to provide them. Somebody has to give up their claim to those things. That's the other side. That's the other side that needs to be consulted with. The Nisga'a got a vote that says, do you or do you not accept what was negotiated, because we are recipients?

The other side that has to provide these things that are negotiated should also have a say. They did not get a say through their provincial government. They didn't even get to hear a full debate on it. There are two sets of representatives down there, primarily: provincial Liberal and NDP. They didn't even get full input. Half of the treaty wasn't even debated in the provincial parliament.

Now we're at the federal level and nobody is getting to put any amendments forward. The minister has said quite clearly that he will not accept amendments; it's just not on the table.

Here we are in British Columbia, listening to British Columbia, albeit with a procedural gun at your head. At least one of you has been honest enough to say that you really didn't want to come here, you didn't want to listen to us, so you'll just go through this facade and then you'll pass it.

So I would ask this of Mr. Eidsvik, in particular, and Ms. Logan—I think Mr. Eidsvik has already said it and I'll give a chance to Ms. Logan—if this thing were negotiated in the open and we had input, and ultimately it was voted on after we had this input and passed in something like what has come out here, would you then think, not only for yourself but the people you know and come into contact with—obviously you're coming from a particular side of this—that it would be more favourably received if in fact we'd had an opportunity to be a part of this from the beginning?

Ms. Debra Logan: I can answer that really quickly. I think the Sechelt treaty is a pretty good example of what happens when you negotiate in the open and with responsiveness to the people involved.

The Chair: You have some more time, Mr. Gouk, if you like.

Mr. Jim Gouk: Thank you.

The thing I'm concerned about—I raised it earlier—is that when the Nisga'a treaty is completed, no matter how much money is there or how much land, or whatever other agreements we make in payments for past wrongs, is any treaty, in your opinion, final in the eyes of all people if it still leaves a difference between the two people? I would ask this of any of you.

If you establish rights, people can use those rights differently. But when you establish something where different people have different rights based on race, is there ever going to be full peace? Can I ask that of any of you? Do you think we are going to have a peaceful resolution, with all people being together, when you hold one group aside and say they are different and they get a different right because they're not the same as you?

The Chair: Mr. Copes.

Prof. Parzival Copes: Let me give a different perspective on this matter. People in different provinces have different rights established by different legislation. People in different families have different rights in terms of their inheritance.

I think aboriginal groups in Canada have rights as communities; this is in fact what the Supreme Court has said over and over again. It is not because of their race; it is because they are an established community that goes back to times before we were here.

• 1740

They have certain rights that pertain to what they had, to what they've brought to the table in this country because they owned and utilized the resources at that time. Those have been removed from them by confiscation. It's fine for us to say now, oh, we all want to be equal now because we have all of the resources and the past is the past and we're not going to deal with that any more. There's a question of restoration of some of those rights.

There's another question we have to confront here: treating everyone identically is not the same as giving them equal rights. They have different needs and different perceptions. They have different cultures. If we were to say that every aboriginal here had to be just like a white man.... We did that before. We put them in residential schools and tried to make them into little white men, and it didn't work.

Are we going to go back to that again? Are we not going to recognize their rights to have their own individual cultures and communities continued?

They have community rights, and that is what we are recognizing. We are recognizing them in an appropriate way: as a group with group rights, many of which have been taken away from them—to the destruction of many of their communities.

Mr. Jim Gouk: Can I just interject on one thing you're saying?

The Chair: No, you cannot, because you're out of time.

Ms. Karetak-Lindell, if you please.

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

You talked a lot about democracy, Mr. Eidsvik. You belong to an organization.

So do you, Ms. Logan.

When you have your meetings, how do you pass your resolutions? Is it by a majority of members approving something?

Ms. Debra Logan: Yes.

Mrs. Nancy Karetak-Lindell: When the Nisga'a people voted on this treaty, this agreement, the majority of them voted to support this agreement, so I'm having a hard time understanding you each time you talk about the lack of consultation and the lack of the government looking at your views.

You never once mentioned the fact that these people decided, as a collective group of people, to accept something. You kept omitting them in your discussions about who made what decisions. I have a very tough time understanding how you can ignore a group of people who made a decision, for themselves, to accept a treaty. If a majority of a group of people accept those terms, that will affect them as a people. I don't understand how you can't respect that when, in your own organization, you pass motions by the majority of the people there accepting them—or rejecting them. That's my first question.

The Chair: Ms. Logan.

Ms. Debra Logan: I have total and absolute respect for the Nisga'a ability to hold a majority vote and do their thing. That's no problem at all. It's not my mandate—in the slightest—to decide for the Nisga'a whether it's good for them or bad for them. My mandate is to decide how the effects of the treaties that they have voted for affect the people I work for, the people I represent.

If I were to comment on how the Nisga'a decided, I would be, in my opinion, descending to the level of Indian Act paternalism, whereby I make a decision on how other people conduct their affairs.

• 1745

Mrs. Nancy Karetak-Lindell: You talked about a referendum. I come from Nunavut, where we just completed what I feel was a very successful.... I'm not sure what the right word would be, but we feel as a group that we had our own way of governing ourselves before somebody came over and decided we had to govern ourselves some other way, without recognizing the fact that we already had our own system. Now I feel, since April 1, that we've been given an opportunity to govern ourselves in the way we thought we should have been governed in the last 50 years. But I don't think it would have been right for other people who are not Inuit to take a vote on a referendum to decide on whether I should keep my language and culture.

So when you talk about a referendum, can you tell me how you, as a non-Nisga'a, can vote to decide whether the Nisga'a should keep their language and culture? That's what a referendum would be deciding. I'm trying to understand how a referendum where a majority of the people are not Nisga'a would decide what rights the Nisga'a should have. To me the Nunavut agreement and the Nisga'a treaty are trying to give back to the people the rights they had all along, before someone else came along and decided it should be different.

Ms. Debra Logan: No referendum, no government edict, no popular opinion, no advice from anyone, including Indian Affairs, would make a difference to whether I retain my language and culture. None. That, in my opinion, is a complete side issue in that no one has helped the Italian Canadian people retain their language and culture. No one has helped those of us who aren't in treaties to retain our language and culture. We do it all without the help of government, without government's paternalistic pat on the head. We don't need a referendum for or against us retaining our language and culture. It's an apolitical issue. It's between ourselves.

Mrs. Nancy Karetak-Lindell: I remember a few years ago when the Sikhs joined the RCMP, they were not allowed to wear their turbans. This was somebody else coming into Canada, and they wanted to have their rights according to their culture. They wanted to wear turbans. As a Canadian people we made those changes to the RCMP to accommodate them in our society. I find it quite disturbing that we'll recognize people who come from outside of Canada and accept their culture and their way of life, but we have to make our original people of Canada jump through hoops and all these things they have to go through to get their rights in their own country. Section 35 recognizes aboriginal rights.

I have rights in Canada that are different because we were the original peoples of Canada. But it was very difficult for us to be recognized that way and to be given the opportunity to run our own lives. I find it quite disturbing that we will accept the cultures and traditions of another group of people who come from another part of the world but we find it very difficult to accept the ones here in Canada.

The Chair: Is that the end? Thank you.

[Translation]

Sir, would you like to begin?

Mr. Daniel Turp (Beauharnois—Salaberry, BQ): I would like to begin by reminding you that the Bloc Québécois voted against the time allocation motion in the House because the issue needed to be fully debated.

• 1750

We are pleased to be here and to hear from you, but we are concerned, as are others, by the fact that some people want to hold consultations not really to hear people's views, but rather to voice their opposition to the treaty in a sometimes unreasonable way. That's why we sometimes question the motives of those wanting to hold consultations rather than focusing on the consultations themselves and their importance.

I would like to come back to something Mr. Copes mentioned and which I find extremely important. It seems that some people want to deny the facts with their objections: some groups do not want to recognize group rights, as Mr. Copes was saying. Many people oppose this treaty and other treaties with native peoples on the basis of that argument. They don't want to recognize that natives have collective rights which are theirs because they were the original inhabitants of this land and because they see themselves as nations. We are familiar with this issue in Quebec. Sometimes we also feel that others do not want to recognize our group right to be recognized as a people.

Our Reform colleagues will not be pleased to hear what I am going to say, but this is what bothers me the most in what has been said until now. In my opinion, the mere suggestion that this treaty is racist goes completely against the intent and the letter of the treaty. While it is true that Nisga'a citizenship will be based on criteria taking a person's origin into account, it can also be conferred on other natives. Chapter 20 states clearly that Nisga'a citizenship can be given to natives who are not descendants of the Nisga'a, as well as to non-natives, because the Nisga'a government will have the power to pass laws conferring citizenship on people who do not have Nisga'a blood.

What concerns me regarding the accusations of racism raised by the Reform Party and which you have repeated here, Mr. Eidsvik, is that they do not reflect the spirit and the letter of the treaty, which gives the Nisga'a time to welcome other nations, other people who are not descended from the Nisga'a in order to throw off the racist framework of the Indian Act. That will cease to exist through the Nisga'a treaty.

How can you say, over and over, that this is a racist treaty?

[English]

Mr. Phillip Eidsvik: Boy, I'm a little bit confused, to tell you the truth, because you just called the Indian Act racist. Under the Indian Act, Indian bands control their own membership. Under this treaty, the Nisga'a will control their own membership, yet you're giving us heck for saying that's racist. So the Indian Act is racist—you just said it—they control their membership by race. The treaty, which allows them to control their membership by race, according to you then, would be racist.

Mr. Daniel Turp: You didn't understand.

Mr. Phillip Eidsvik: I must not have understood. One more time.

Mr. Daniel Turp: The Indian Act is racist, okay? This is to replace the Indian Act. This is not racist, because this agreement will allow the Nisga'a to bring into their communities people who are not Nisga'a.

Mr. Phillip Eidsvik: Any band council can do that today.

Mr. Daniel Turp: Do you think they will not do that? Is that why you think it's racist? Do you think they will not want to open themselves to others? Is that your argument?

Mr. Phillip Eidsvik: I can tell you our experience on the Fraser River with some other groups. I have sat on the dock for seven years and watched the Musqueam and the Sto:Lo fish. They have been allowed to issue licences to anybody they want. They have yet to issue a licence to anybody not strictly connected to their bands.

• 1755

Maybe the Nisga'a will open it up at some point to other people. It's funny, though, given the benefits in the Nisga'a treaty, that they would open it up widely to other Canadians.

As it stands today, the people who voted on the treaty were determined by their racial heritage or Indian band membership. I wasn't allowed to vote on that treaty, so how can you tell me it's not a race-based treaty? Did you get to vote on it, other than in your role as an MP?

Mr. Daniel Turp: I just trust the Nisga'a. I just believe that in doing this we open a new future for the Nisga'a. That's what I believe in. I just trust the people because this is a very different way of seeing our relationship with the Nisga'a. That's what my view is on the future.

Mr. Phillip Eidsvik: I think the Nisga'a have done an excellent job negotiating this treaty and they should be proud of the people who negotiated it for them. They've done an excellent job.

This treaty, however, is designed to stand for a long time. It's cast in constitutional concrete. When this generation of Nisga'a is gone, who will be the next? I am reluctant to give the type of fishing rights in there to a single group when there's a much better model, where every Canadian can participate on the same basis. That's the model. Why separate Canadians?

Mr. Daniel Turp: I would just add that the future is not about reluctance. The future is about respecting other people and making sure people live together through agreements like this.

Mr. Phillip Eidsvik: If the Nisga'a treaty goes through, there'll be fishery days on the Nass River. If I fish during those days that only the Nisga'a are permitted to fish, I'll be arrested and thrown in jail. I could lose my licence and my boat. Is that fishing together?

Until now, when the fishery was open, it was open to everybody—Nisga'a, Gitksan, Italian.

Parzival, you sit here and shake your head, yet there are less than 50 aboriginal people working at SFU out of 3,000 employees. Out of 3,000 people in our fishery, over 1,000 are aboriginal people, fishing and participating on the same basis as everybody else. So don't shake your head at me.

The Chair: Mr. Copes, go ahead. That will be the end of this round and we'll be going to the second round.

Prof. Parzival Copes: I think there's a misunderstanding of what happens in the salmon fishery here.

Salmon are migratory fish. You don't all fish at the same time. You fish when the fish are in your territory. So the Nisga'a will be fishing when these fish are in their territory. It is their responsibility to manage fishing there. They're doing an excellent job. They received a prize for it. They are thereby increasing the total productivity of the Nass River system, to everybody's advantage. You can't expect everybody to fish somewhere else because they're fishing today, when the fish happen to be in their territory. That is nonsense.

Mr. Phillip Eidsvik: We've done it for 100 years in the fishery.

The Chair: Thank you Mr. Copes.

Mr. Finlay, please.

Mr. John Finlay (Oxford, Lib.): I want to say I agree very much with my colleagues, Nancy, Mr. Bonin, and Mr. Turp. It's very difficult if you refuse to look at history. In the Atlantic fishery—and I thank you Mr. Keddy for your thumbnail sketch—a lot of the cod wasn't caught by Canadians; it was caught by Spaniards and people from Europe, where Mr. Eidsvik comes from. The B.C. salmon fishery—and I'm a biologist, or was—

Mr. Jim Gouk: Where do you come from, John?

Mr. John Finlay: I come from the West Indies.

The B.C. salmon fishery has been an obscene fishery for many years. You could make a good living from it on the Fraser River if you got out there at the right time with everyone else. The fish didn't have a chance. But if you had a good boat and took in a lot of fish, you would earn a year's wages in about two weeks.

I want to let Mr. English know that I appreciate his science. I appreciate what he's told us. I'm not sure whether Mr. Eidsvik understood the graph or not. I think the graph shows that when the Nisga'a use their award-winning method of upping the number of fish allowed to spawn in order to increase the number that will come back from Alaska and other parts unknown, they are doing a service to the other fishermen here.

• 1800

I want to say that I appreciate Mr. Copes' very intelligent and orderly presentation too.

I want to ask Mr. Eidsvik whether or not he thinks that 26% of Nass salmon is somehow an unfair number for the people who live on at least half of the Nass River, as I can see it on the map. It seems to me that it's not really their desserts but they have compromised considerably.

Mr. Eidsvik, on your idea of rushing out in your boat and competing against everyone else, and if you catch the most, too bad for them, well, that will down the fishery in a matter of two or three years. There won't be a fishery with that kind of attitude. All of us know enough science for that, surely.

Ms. Logan, if you are now with your 100,000 growers using 0.05% of the potential available shore sites for your obviously wise shellfish industry, how in the world is there something wrong with the Nisga'a having 71 square kilometres of that? What happened to the clams that used to support the five processing plants in those areas? They weren't Nisga'a plants, were they? It wasn't the Nisga'a who fished the clams to extinction in the area. It was the rest of us.

Thanks, Madam Chairman.

The Chair: Mr. English.

Mr. Karl English: I would love to have the opportunity to mention the fact that our fishery out here is not exactly in the pristine health it once was. There's a desperate need for some changes to the system, because it will go down the tubes if we don't make some changes.

One of the critical areas of change is to have some order in the fishery, to have some definition of what shares go to whom and how many and where they can be harvested. As much as you might like to have everybody going out at the same time, all having equal access to the resource, there has to be some order in the fishery.

This agreement calls for the most simplistic amount of order where you have clearly defined, in-river fisheries, with selective harvest gear that could not be deployed until a few years ago. In fact, we couldn't even consider proposing it in some areas. It was ruled out as an option because the existing commercial fishery made sure it was ruled out as an option. It was not considered on the table.

Now it's going to be considered in other areas. Groups working with commercial fishermen on the central coast are working in deploying in-river gear. They are working with first nations like the Oweekeno First Nation on rivers like the Wannock River, and probably on the Fraser River as well, and they are looking at opportunities to work together.

All this is happening because people are saying there needs to be a change. This agreement has created an opportunity, as do a lot of other agreements in B.C., to actually fix a lot of problems in this fishery. Get it away from the commercialized race for fish, get the harvest orderly, bring back the amount of spawners we need, and get on with the game. These resources can be far more productive than they currently are.

Last year was a great example. While all these other stocks that everybody was racing around trying to compete for were collapsing, the Nass had one of the best returns ever. A very orderly, controlled fishery with its own commercial fishermen in the northern area...and the escapement goals were achieved, even though there was tons more gear out there than they had ever seen, because there weren't any fisheries anywhere else.

• 1805

So we just need to look at the big picture and realize—and we're not trying to entrench the system or trying to protect a flawless system that's been very good and is going to get destroyed by something else—we have an opportunity to make the system better. That's what's being achieved here.

The Chair: Okay, your time is up.

Ms. Hardy, please, you have five minutes.

Ms. Louise Hardy: I'd like to comment again on the assumption that this treaty is based on race, and probably I won't convince Mr. Eidsvik, but I'd like to try.

In the Nordic areas they have what are called autonomous areas. One of them belongs to Finland and it is the Aland Islands. These people look exactly like other people in Finland except they have a different history, a different language. In fact, they negotiated a treaty and they have their own government. They have their own citizenship and they will allow people to become citizens, depending on whether or not they can speak the language. People can also end their citizenship at any time. Because they depend on fishing, they have laws on who can fish and who can't fish. That agreement was based on rights because it was their right through their long history to have that government.

I see that translated here. What we're trying to achieve with the Nisga'a people is to give them their rights. The argument that we keep hearing over and over again is that it's based on race.

The Indian Act was obviously based on race. So what we did was we took away people's rights based on race. Now that we negotiate treaties to try to return their rights, we're accused of trying to give them back something because of their race. So we can do the wrong thing if they're an Indian, but we can't do the right thing if they're an Indian. I just think that's a terrible argument, and it doesn't hold up.

The Chair: Mr. Eidsvik.

Mr. Phillip Eidsvik: You're suggesting that our organization endorses the Indian Act, and to put those words in our mouth is foul and outrageous. We have never endorsed the Indian Act; we think it was a mistake when it was done. It's caused pain and suffering throughout Canada, and we're glad to see it being substituted and working in a different direction.

However, the Nisga'a right to sell salmon is something that's never been proven. The two major cases that have dealt with the sale of salmon in British Columbia involve two other very heavy users of salmon, one in the Fraser River and one in southern Vancouver Island. In both those cases the Supreme Court of Canada said they weren't even able to prove a commercial right to barter, let alone the higher threshold of a right to sell salmon. It seems fairly obvious that trading salmon is something like trading air. Most people in precontact society here had access to salmon.

Now oolichan is another matter. If you look at the historical record, you'll see the Nisga'a traded widely in oolichan. If they went to court, they would have a good shot at proving a commercial right on oolichan, but on salmon, no.

So you're not protecting a right in the treaty; you're creating a new right in the treaty, and that is wrong for a whole number of reasons, including the race issue, the management issue, the impact it has on other people, the more difficulty....

With respect to the comments that this new method of managing the fishery...it's not a treaty debate. This is an argument on whether privatizing the fishery is good policy.

If you went to sell that on the east coast, Mr. John Finlay, you'd have a very split fishing community, and I think Mr. Keddy would attest to that.

Privatizing the fishery, where everybody gets a certain amount of fish at a certain time and fishes in a certain place, is a very controversial issue. If that's the way we want to go in the fishery, fine, but you don't need a treaty to do it.

The Chair: Ms. Logan, go ahead.

Ms. Debra Logan: I'm sorry, Mr. Finlay, I don't remember all that you said, but there is one thing that I would like to comment on because it troubles me considerably. It is on the subject of the greedy race to catch the last fish. I'll use an analogy. Probably somewhere here in the suburbs there's a neighbourhood pub. By definition, it is meant for people to come to from their neighbourhood and to socialize and go home again. It is a little different from the one downtown with the lady in the scanty dress and the police touring the parking lot quite regularly.

• 1810

Now, if a neighbourhood pub owner was to stay within the spirit of the neighbourhood pub, he'd probably close it at 10 p.m. After all, people should be home with their families by then. They should not be sitting in his pub drinking until 2 a.m. But the fact is, neighbourhood pubs stay open until the city bylaws or the liquor control laws make him close at 2 a.m.

Why do they stay open? Two reasons. One, they have bills to pay. They have an infrastructure they've bought, and they must keep it open and operate it as long as possible in order to pay the bills. Two, there's the profit motive. The profit motive is something I think everyone in this room understands. Not one of us in this room doesn't like to do well.

The same thing applies to fishing.

I must admit, I thank the municipal governments and the liquor control laws for putting that curb on neighbourhood pubs so that they close at 2 a.m. It's great. We don't have drunks still rolling around at 7 a.m. We don't have people who never go home.

The same thing applies to fishing. We go out there to do the best we can for our families, the same way the owner of a hot dog stand stays out as long as city bylaws let him if business is good, and a pub operator stays open as long as he can. Because of that motive to do as well as we can, we have municipal bylaws to close the pub and shut down the hot dog stand, and we have DFO to shut down a fishery.

Let's see, now, is it the greedy fishermen who are the problem here or is it DFO? Is it DFO falling down on their duty to the Canadian public to keep a common property resource in good condition?

The Chair: Mr. O'Reilly for five minutes, please.

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

I want to thank the witnesses for quoting me so profoundly. I am glad to have opened up the discussion with my indication that the agreement is signed and will be passed by Parliament, which is honest, whether you like it or not.

I want to clear up one thing. I was not forced to come here, kicking and screaming. In fact, I was asked, as some other members on this committee can attest, to stay in Ottawa, because there is an important vote in Parliament on the port authorities act. Mr. Bonin was also asked to stay in Ottawa. I said no, that I'd go to British Columbia any chance I could and would not miss this trip.

So contrary to Mr. Gouk's wonderful dissertation that I was dragged here, kicking and screaming, I was not. In fact, I had the opportunity to not come.

I believe most profoundly in democracy, and I believe most profoundly in the right to hear the opposition. But I also want to be extremely truthful that the treaty is signed, and that any changes by the parties will be by the parties that came to the agreement, not by the Parliament of Canada.

If that's being too honest for some people in this room, I refuse to apologize.

I only wanted, Madam Chair, to clear this up. I had the opportunity to stay in Ottawa. As I said at the opening, even though I am still suffering from jet lag and my flu shot, one bad day in British Columbia is better than four good days in Ottawa.

Mr. Jim Gouk: Apology accepted.

Voices: Oh, oh!

Mr. John O'Reilly: It wasn't an apology. It's the truth.

Thank you very much to the witnesses. I'm particularly interested in the two opposing attitudes. Of course, every time there's change, there's opposition.

I'm 30 years a real estate broker. I don't like change either. They just changed all the regulations in the real estate industry. You know, with any luck at all I'll never have to go back to it—but maybe with some luck I would.

I want to thank you for the opportunity to be in British Columbia. It is a beautiful province and you should be very proud of it.

I will, by the way, vote for this agreement.

Thank you.

The Chair: Before I go to our next speaker, who is Mr. Keddy, I will take the opportunity to clarify that any person, no matter where they are in Canada, whether they're here in person or in an audience, can send in to the clerk at any time anything they wish on this treaty.

Briefs have already started to come in, and I imagine they'll continue to come in. I think people should recognize that this committee was sent by the House to do, within a certain limited time period, full hearings in five different locations inside B.C.

• 1815

At the time we were told to do that, I also want to clarify, we had no budget to travel. To get a budget to travel you need to have witnesses. The committee sat immediately after knowing this and got their list of panel of witnesses. We sat for two hearings, one right after the other, and then it went to steering committee. During the last week the House was not in session and we were in our ridings, the clerks used that time period to contact people. We are assembled here in very short order after having having used our list of witnesses to obtain our budgets and come out to British Columbia.

This committee worked very hard yesterday to get to this location and is very grateful to have the witnesses accommodating us by staying later this evening so they can be heard by all of us. We think this is an appropriate exercise, and it will continue throughout this week. We hope later this week, starting tomorrow, the weather will cooperate also.

Mr. Copes, you wanted to say something.

Prof. Parzival Copes: Madam Chair, may I mention to the parliamentary committee that I have a brief for this meeting, which will be translated and distributed. You will find at the back of that brief a large number of references to other relevant papers I have written. I have left a set of those papers with the organization here, so you'll be able to have access to those as well.

The Chair: Professor Copes, if you want to just hand in your documents—

Prof. Parzival Copes: I've done so.

The Chair: Okay. Then they'll be translated by us. You don't have to do the translation on your own.

Mr. Keddy, it's your five minutes.

Mr. Gerald Keddy: Thank you, Madam Chair.

There are still a couple of points. I get the sense that we're going around and around here, and there are still a couple points I want to try to pin down. I'm not quite certain where some of our witnesses stand on all of the issues, so I want to try to pin it down a little narrower.

First of all, I would disagree with Mr. Eidsvik that this is set in constitutional concrete. Although it's a great use of alliteration, in reality this treaty is not protected. It is not part of the Constitution of Canada; it's protected by the Constitution of Canada. There's a big difference.

This treaty can be changed with the consent, in some areas, of two of the parties, and in other areas it can be changed with the consent of three of the parties. You don't have to get eight provinces in this country to agree to change the treaty. There's a big difference between something being part of the Constitution and something being protected by the Constitution. We all have rights that are protected by the Constitution.

The other issue is the fishery based on race. When you made that comment I was a little surprised.

We have across this nation, but specifically on the east coast, fisheries that are sometimes proportionately represented by communities and sometimes disproportionately represented by communities. We have an instance on the east coast where one or sometimes a handful of individuals control a considerable amount of TAC. One individual, one person alone, controls 39% of the offshore scallop TAC, and yet no one's saying that's somehow a fishery based on the rights of one person or based on the race of that person.

I could agree with what you're saying if you said the entire salmon TAC was going to be dedicated to the Nisga'a Nation and you may have a fishery based on race. What you have is part of a fishery based on one group.

I've made this comment before, that really, 26% or 27% of the TAC can be very significant or it can be 26% or 27% of nothing. It's only there if the resource is looked after, allowed to breed, allowed to go back to sea, not intercepted in Alaska, and can actually come back to the rivers to spawn again.

• 1820

While listening to both your arguments, I think if the federal government made it very clear that in the case where licences were not able to be utilized and a non-native licence was taken, or that person was not able to fish that licence, if that licence was compensated—and I'm going back to your original statement—you would view this process differently, that there needs to be a process of compensation for any loss of livelihood or any loss of licence use that's out there now.

Am I oversimplifying that?

Mr. Phillip Eidsvik: On that point you're correct. When you reallocate, no matter how you do it, somebody's going to get hurt. The fishery's already oversubscribed. The people already in it shouldn't have to suffer for a debt that's owed to the Nisga'a people by all Canadians. It's not fair to single out the fishermen in northwestern B.C. and say “You gotta pay extra, buddy.”

So you're correct on that principle, but I'm confused by this idea that if you put 25% to the Nisga'a, that is not a race-based—

Mr. Gerald Keddy: I guess what I'm saying is that is it more race-based than one person owning 39% of the offshore scallop TAC? Is it any more race-based than any fishery I can name in the South Shore riding that has more than their lobster licence, or if they have five offshore draggers?

We have all kinds of interests in the fishery that are owned by groups or by individuals, and we're not saying that's a bad thing. I look at the Nisga'a treaty and say, okay, 26% of the TAC happens to be owned by the Nisga'a Nation. I don't look at that and interpret it as being a race-based fishery.

Mr. Phillip Eidsvik: I think we're going to have some disagreement here. Just to highlight the issue, there are five other aboriginal groups with claims to Nass River salmon. The first one to settle a treaty now has 26%.

Let's take the example of James Walkus, the aboriginal chief from Port Hardy who owned 18 seine boats before the buyback. I don't know what the final number is.

Have I said he has a race-based fishery because he has 18 seine boats? Of course not. He bought those seine boats on the open market. If he decides one day “Phil, I want you to buy my boat”, I can buy his boat. I don't have to be accepted into his band to fish with that boat and to catch part of the quota he'll hammer on. That's the difference.

It would be the same thing if you said that as a result of the Marshall decision, we're going to give the Mi'kmaq and the Maliseet 50% of the TAC and they're going to fish it on days they choose. I think the cries of outrage would be far and wide in the east. But if you apply that principle in the Nisga'a treaty to the fisheries back there, I think you'll see where this breaks down.

Mr. Gerald Keddy: I'm very familiar with the Marshall decision and the outcome of it. It's a big issue on the east coast, and it's an issue we've not settled yet. At the end of the day, though, we're going to have a different fishery.

The fishermen recognize that. They've asked for two things, the commercial fishery. One of them—and I don't mean to get off the subject we're on—is that any increase in the fishery is absorbed from within the fishery, and licences are bought back from commercial fishermen who are willing to sell, but no one is forced to sell.

Certainly there's an assumption and wide-based knowledge that we're going to have a different fishery than we have now on the east coast as a result of the decision. It may continue to be fought in the courts and it make go through a long and involved process, but there's no question that the fishery is going to change.

It will not change easily and it will not change overnight, but I think the important thing to look at here is to make sure that no one is adversely affected. If someone wants to leave the fishery, then they should be compensated for that and for that licence. So you don't increase the TAC because you have more players. You work those players into the industry. You have a finite resource, and that resource is there because of conservation, most of it brought on by DFO in coordination with the commercial fishery.

• 1825

What we're dealing with here is a separate issue. I'm trying to take the race issue out of it. I just think it's negative to the debate.

Mr. Phillip Eidsvik: The difference is that 26% given to a Nisga'a nation. It's put in an agreement protected by the Constitution. Nobody else can ever have access to it unless they decide to do it, unless they decide to let it out. It's not in the public domain. All that other stuff is.

Mr. Gerald Keddy: What part of the public domain do the Nisga'a not encompass? They are part of the public domain. They are part of the country called Canada. The dollars aren't something that just get sucked down a black hole. They're part of the greater revenues that come into the country. There are goods bought and sold, whether that's in the town of Terrace or somewhere else. Everybody is part of the general, greater organism, if you will, called the economy of this country.

The Chair: And on that note, we'll end. You're over your five minutes.

Mr. Iftody is our last questioner of the day.

Mr. David Iftody (Provencher, Lib.): Thank you very much. And I have five minutes?

The Chair: You have five minutes.

Mr. David Iftody: I was hoping I could have 30 since I've been waiting so patiently.

The Chair: No, just five minutes.

Mr. David Iftody: I want to get everything on record as well for Mr. Eidsvik.

I'm not from Ontario. I'm a western Canadian—you're not going to hold that against me, are you?—and I represent farmers in my area, primarily in southern Manitoba. My grandfather came here as an immigrant person, like yours did, although I don't share your view of history at all in terms of this whole notion of some unusual things happening—race-based this and race-based that.

Of the people I serve, the majority of them are Mennonite people who came here in 1874 in the first wave and then in the early 1900s in the second wave. They came into Canada under some certain conditions. For example, one was that they would not bear arms or go to war. So this was granted based on—ah!—ethnicity and race. They wanted to have separate schools because of their religious Christian beliefs. They didn't want to be amalgamated into the regular school system, so they were granted that based on what? I guess it must have been race. Interestingly enough, they have prospered quite well in this country and have made such a great contribution as some of the most dynamic Canadians. In fact, we have one with the Reform Party. Mr. Epp is of Mennonite extraction, and his own people have come through that pathway as part of Canada.

I differ with you fundamentally as well, sir, on your understanding of Canadian history and how our Constitution was formed—the relationship to the British crown, the negotiation of the treaties, the Treaty of Paris, signed at the same time as the MacKay treaty, and these kinds of things. I believe you know your issues well with respect to your own interests, and you articulate them well here, but I think your understanding in a context of Canadian history and society and law, constitutional law, and relationships with peoples is very narrow.

I was not dragged here. In fact, my minister wanted me to stay home. I love coming to British Columbia. I think this is a beautiful province, with wonderful people, some of the best Canadians. I have many friends here, sir. I am not part of some bogeyman who has come here to take something away from the good people of the Terrace area, as you try to suggest. Personally, I would say that I find that marginally offensive. It's perhaps politically astute on your part for what your interests are, but certainly not for mine. I want to get that on record in order to make that very clear to you.

The question I have actually is for some of the other panellists who have been sitting here very patiently for what now seems like a number of hours. I wanted to ask some of them to comment on some of the doom and gloom. Mr. Eidsvik mentioned, for example, that we're doomed, that the sky will fall in if this treaty is signed, that bad things will happen to the people in the fishing industry. I don't know how he arrives at those conclusions. We talked about the different fishing rights, and he keeps going back to the race issue and so on, perhaps hoping it will be a wedge of confrontation and an unsettling emotional dispute between the people.

• 1830

I would refer to paragraph 33 of chapter 8, the fisheries chapter. My reading of this, very generally, is that it means that when there is no non-Nisga'a commercial fishing, the Nisga'a are not permitted to fish either. I guess the general rubric and understanding is that we all want to work towards conservation, and what is in the best interests of all the good people of this region, native and non-native alike.

I want to read from that, if I can. Paragraph 33 states:

If, in any year, there are no directed harvests in Canadian commercial or recreational fisheries of a species of Nass salmon, sale of that species of Nass salmon harvested in directed harvests of that species and that year's Nisga'a fisheries will not be permitted.

Does that mean there is some type of a striking of a balance? I want to know if I'm reading this section clearly, that essentially what the drafters of this legislation are trying to do is work out a compromise of conservation. When one isn't fishing, the other one isn't fishing.

I'd like to start with Mr. English, and then Professor Copes could comment on that as well, please.

The Chair: Mr. English, go ahead.

Mr. Karl English: In the long process of getting an agreement, there were a tremendous number of discussions around how to avoid conflicts between the gear types. The concern that was brought from a lot of Fraser fishermen to the negotiating table, through the federal and provincial negotiators—it wasn't like they didn't get there—was that they didn't want to have Nisga'a commercial fishing going on at the same time as when the other guys were tied to the dock—that kind of syndrome. That provision was therefore put in.

It was never considered by the Nisga'a that there would probably be many cases when, if the resource was properly managed, the other guys would be tied to the dock. In fact, in recent history, there have not been any cases in which the Nass fishery has been closed. Recent years in the Fraser have now prompted significant concerns, so that was put in the treaty specifically for that point. The Nisga'a will not be selling fish caught in their fishery if the commercial fishermen in the general commercial fishery licensed by Canada can't sell fish or can't target those same stocks.

Mr. David Iftody: So according to this chapter, there is no secretly negotiated thin edge of the wedge here, based on race, to give first nations fishermen some unfair jump. You know, the other guys are tied to the dock with a rope around their leg and the Indian guys will be scooping the fish. This section addresses that. Is that correct?

Mr. Karl English: That's correct. In fact, because of the location of the fishing, the trick is for the fish to get through the other fishery so that it isn't like it has been historically, that the first nations get the last crack at whatever is left over. The idea is to try to plan the fisheries so that the groups can fish, not in each other's shadows, but in an orderly way through the season, with each getting a crack at the fish as they come in. If the runs are so small that we can't have a commercially directed fishery on Nass area stocks, Nisga'a will still go fishing if they're not too small, but they can't sell any of those fish under the treaty. They can take those few fish home—it will be a very small number; in sockeye, I think you're talking about less than 20,000 fish, whereas they currently catch well over 35,000 to 50,000 a year—and they can feed them to their families, the way they have for thousands of years. But they can't sell them if the commercial fishery can't sell them.

Mr. David Iftody: Madam Chair, in the time remaining I'd like to ask Professor Copes a question, too.

Asking these kinds of questions is always difficult, because you're getting to intent, motivation, and so on, which are always hard to describe. Sometimes when you do that, you hurt people's feelings, although I don't intend to do that here at all.

• 1835

Speaking very broadly about the terms of the agreement, if I understand you correctly, you seem to suggest to this committee, for the purposes of our information, intelligence, and drafting of a report and reporting to Parliament for third reading, that you see this as a win-win, generally. As a professor and someone learned in these matters, which I am not, on the whole question of conservation, if the interests of the people of British Columbia are more broadly described here, that those are protected most certainly, with certainty being one of them, I'm puzzled. We've heard the other witnesses here describe in rather emotional terms their reasons for opposing it, using race and saying we're doomed—I wrote down some of these adjectives—to describe what the problem is.

Can you help me and this committee in perhaps identifying the fears of the panellists next to you, in your view? Why are they having difficulty if the facts suggest in the treaty, and others are saying, this is going to be a win-win? In other words, what's really behind some of the debate?

Prof. Parzival Copes: I'll be glad to address those questions. I'll do it in two parts. Let me first talk about what I think are the problems of misunderstanding and also of mishandling of questions here. I'll refer to the aboriginal fishery on the Lower Fraser River. I'm very critical too of how that has been handled.

What we have seen there—and I think this gives rise to the criticism that the aboriginals are allowed to fish when others are not—is that after the Sparrow decision, which determined that aboriginal people had a right to fish for food, social, and ceremonial purposes, the Department of Fisheries and Oceans had to make arrangements so that could be done. The unfortunate thing is that whereas all along some fishing was done by native tribes, particularly on the big river systems, for fish-for-food purposes—the food fishery did exist already—the problem was that this was not quantified. If you want to have good fisheries management, you have to be able to say we'll have so much fishing and then we'll close it because we have to have enough escapement going up the river.

So when the Supreme Court in Sparrow said that greater opportunities had to be given to aboriginal people for the food, ceremonial, and social purposes, the problem was, how much fish is that? To what extent can that be stretched? The aboriginals say they need more for fish for food and ceremonial purposes. Then the question came also of whether they could sell what they caught for food, social, and ceremonial purposes. In many cases, the Supreme Court said they couldn't sell it, but in some cases they said if it is something that was inherent to your culture, you were doing it in the past, you were trading with fish and neighbouring tribes, and so on, then you can take your food fish and also sell it.

The Gladstone case is the case that was made there, but very often it's difficult for the aboriginals to prove that they did it in the past, because there isn't all that much written historical evidence. In the case of Gladstone, there was, because when Mackenzie arrived on the west coast on his trip across Canada, he described the fishery and the fish trade in roe and kelp in his journals, and so they had historical evidence that they could bring to bear. Delgamuukw may make a change insofar as oral history now also may be accepted.

• 1840

So this was the problem DFO had. They didn't have a quantity to which they could limit the aboriginal fishery.

To solve that problem, DFO said to the tribes on the lower Fraser, we'll give you a fairly generous food fish allowance, but you have to agree that you'll stick to this quantity, and to make it attractive to you, whether you sell it or whether you keep it is your business. This induced a lot of the tribes to sign on. They would take so much fish and no more. That would be their food fishery, but they could dispose of it as they saw fit.

Of course, other fishermen seeing that going on, that the food fishery has first priority—

Mr. David Iftody: I know I'm about to get cut off. If I could summarize—

Prof. Parzival Copes: Let me move to the more important question.

The Chair: Excuse me. I think we are both finished on this point. We're quite a bit over our time period.

I'm going to thank all of the witnesses for coming today and for staying. All of you have contributed to this discussion.

I'm also going to thank all the members of the public in the local area who have come out today to learn what our witnesses have had to tell us.

In regard to tomorrow morning, I can advise our committee that our plane has landed in Terrace now, so it will be up to our pilot to say whether it can take off from Terrace tomorrow. If not, alternate arrangements will be made to get us to our next place, Smithers, tomorrow. Our clerks will get back to us as soon as they know this information.

Thank you very much. I adjourn for the evening. We will reconvene tomorrow in Smithers.