AAND Committee Meeting

STANDING COMMITTEE ON ABORIGINAL AFFAIRS AND NORTHERN DEVELOPMENT

COMITÉ PERMANENT DES AFFAIRES AUTOCHTONES ET DU DÉVELOPPEMENT DU GRAND NORD

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, November 16, 1999

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[English]

The Chair (Mrs. Sue Barnes (London West, Lib.)): Good afternoon. I'm a member of Parliament from London, Ontario, and chair of this committee. I'm very pleased to be here with you.

Before we start the afternoon session, since some of you were not here this morning, I'm going to quickly ask the members to introduce themselves. Some of the others will be joining us very shortly.

I would welcome any member of the public who wants to present a brief to either deposit it with the clerk—and we have some clerical assistants out in the hallway—or send it to the clerk of the committee in Ottawa. Anybody is free to do that, whether or not they are around this table as witnesses today.

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If you have a cell phone, please take it outside of the room so we are not interrupted in the testimony.

Maybe we'll start with Mr. Scott as an introduction.

Mr. Mike Scott (Skeena, Ref.): My name is Mike Scott, member of Parliament for Skeena.

Mr. Jim Gouk (Kootenay—Boundary—Okanagan, Ref.): I'm Jim Gouk, member of Parliament for Kootenay—Boundary—Okanagan in southeast British Columbia.

Ms. Louise Hardy (Yukon, NDP): I'm Louise Hardy, member of Parliament for the Yukon.

Mr. Gerald Keddy (South Shore, PC): I'm Gerald Keddy, Progressive Conservative member of Parliament for South Shore, Nova Scotia. I'm a critic for Indian Affairs and Northern Development, and Natural Resources.

Mr. John O'Reilly (Haliburton—Victoria—Brock, Lib.): I'm John O'Reilly from Haliburton—Victoria—Brock in central Ontario, about 80 miles north of Toronto. We don't like the Toronto Maple Leafs either.

Mr. Raymond Bonin (Nickel Belt, Lib.): I'm Ray Bonin, member of Parliament for Nickel Belt, which is in northern Ontario.

Mr. John Finlay (Oxford, Lib.): I'm John Finlay, member of Parliament for Oxford County in southwestern Ontario, and the vice-chair of this committee.

Mrs. Nancy Karetak-Lindell (Nunavut, Lib.): I'm Nancy Karetak-Lindell, member of Parliament for Nunavut, which is the new territory in the eastern Arctic.

Mr. David Iftody (Provencher, Lib.): I'm David Iftody, member of Parliament for Provencher in Manitoba. I'm also the parliamentary secretary to the Minister of Indian Affairs and Northern Development.

[Translation]

Mr. Claude Bachand (Saint-Jean, BQ): My name is Claude Bachand. I'm a member of Parliament for Saint-Jean and the Bloc Québécois critic for Indian Affairs. Sain-Jean is 25 miles south of Montréal.

[English]

You'll need your translation device if you want to listen to me this afternoon.

[Translation]

Mr. Daniel Turp (Beauharnois—Salaberry, BQ): Good afternoon. My name is Daniel Turp. I'm a member of Parliament for Beauharnois—Salaberry and the Bloc Québécois spokesperson for Intergovernmental Affairs.

[English]

The Chair: Thank you. The order of the day is Bill C-9, an act to give effect to the Nisga'a Final Agreement. Our witnesses are from the Gitanyow Nation. We have many chiefs and presenters today. We welcome all of you and are grateful for your attendance to help this committee understand.

Mr. Williams, please commence.

Chief Glen Williams (Chief Negotiator, Gitanyow Nation): Thank you very much, and thank you for the opportunity to be here before the committee. Before I start, I'd like to introduce the members with me here this afternoon.

Robert Good is one of our hereditary chiefs of the Frog clan. His chief name is Sindihl. Philip Daniels is another hereditary chief. He's one of the head chiefs of the Wolf clan and his name is Gwass Hlaam. We will give you the correct spelling of these if you wish later.

Timothy Martin is also a member of the house of WiiLitsxw. Greg Rush is a sub-chief in the house of WiiLitsxw.

Our legal counsel is Peter Grant. Debbie Good is a member of one of our houses—GamLaxyeltw.

Ken Russell is Chief Hizimskue of the Wolf clan in Gitanyow.

So we are the Gitanyow hereditary chiefs. This afternoon we would like to provide you with a brief overview of the world view of the Gitanyow. We will tell you about the Gitanyow people and give you some background on the Gitanyow. We want to spend at least 10 to 15 minutes at the maximum on that.

Then we will proceed to some opening remarks by Philip Daniels, who is the head chief here, and Robert Good and Greg Rush. Then we want to proceed to reviewing the written brief we have provided to the committee. That brief is called the “Submission to the House of Commons Standing Committee from the Gitanyow Hereditary Chiefs”. It's about a 20-page document. We also have some appendixes to that, different correspondence. We also have an analysis of the Nisga'a Final Agreement.

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Once we've concluded that, we'll come back to some specific recommendations we would like to put forward to you this afternoon with respect to the amendments we believe are needed to Bill C-9.

I'd like to now proceed to an overview. One of our chiefs will present the overview. Darlene Vegh is one of the members of the house of Wilksiwitxw.

Ms. Darlene Vegh (Global Information System, Gitanyow Nation): Thank you, Glen. My English name is Darlene Vegh. My Gitxsan name is Haajoan. I want to give you an overview of the Gitanyow world view—what our society looks like and how we view the world from within our cultural history.

This map shows the Gitxsan territories in the north in the upper Nass watershed. The Gitanyow territories are in the middle to upper areas of the Nass watershed and the Nisga'a territories are in the lower Nass.

This polygon shape shows the 1969 Calder case. I'm sure most of you are aware of that. In our world view, that is the Nisga'a land. We have no problem with that. The photo is of Chief Gwass Hlaam and Chief WiiLitsxw in 1910. Our documentary records span 120 years. Our oral history spans 10,000 years.

I first want to tell you about content and context. When I talk about that I'm referring to culture, biculturalism, and social, political, and economic realities for the Gitanyow, and then whose culture is framing the question. In this case we're dealing with the Nisga'a, B.C., and Canada—with the Nisga'a Final Agreement.

To interact with us you need to have some context for our knowledge, our relationships, our roles, and our responsibilities on our land. These factors will determine the point of reference for understanding the implications of the Nisga'a Final Agreement to the Gitxsan Nation.

There's a little inset map at the bottom. Again, that's our world view and where it sits in the province of B.C. Debbie will tell you a little about the people.

Ms. Debbie Good (Traditional Use Study Coordinator, Gitanyow Nation): In the Gitanyow Nation we speak the Gitxsan language. We are partly connected to the Gitxsan, although we are an independent nation. Our society is linked and governed through the grandmother, mother or woman in the house. We have eight wilps, or houses, that govern the territory, as you see on the map.

The eight houses are listed. Gwass Hlaam owns that one—Gwanew, Comlayelt, Malie, Heislz, Wilksiwitxw, Biosh, and Laurhan. We have eight houses, as I said earlier, but in our society we have linkages to our Wilksiwitxw, who is our father's side. This again links us not only to the Gitxsan but to the Nisga'a Nation as well.

Our society is divided into pdek, which is the clans. In Gitanyow we have the Lax Gibuu and the Ganeda which are two ruling clans. We have biological links to the Gisga'ast and the Lax Skiik. Also, we have members of the Lax Skiik and the Gisga'ast who live in Gitanyow, who are there through marriage.

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Darlene.

Ms. Darlene Vegh: As Debbie said, there are eight world territories, shown as a set of red shapes on that map on this wall. The set of green shapes shows the Gitxsan territories.

We're a riverine-based culture. In the satellite image hanging up way over there, you'll be able to see the rivers. Most of the villages are located along the rivers. Most of the resources we gather are from the rivers and the river system.

There are a number of tributaries to the Nass that have very prominent roles in our history and our culture, the northernmost one being—in English—Surveyors Creek. It's the northernmost boundary between the Gitanyow and the Gitxsan; that's where Surveyors Creek is. There's the Bell Irving River that comes down into the Nass, which is also the Gitxsan and Gitanyow boundary. We have the Kinskuch River, which is the boundary between the Gitanyow and the Nass. We have ancient villages along the Nass river system and in the Meziadin Lake area.

Sometimes people ask us about overlap. I've tried to explain it to non-aboriginal people, but when you see these lines on a map and you see a solid line saying that is our boundary, what you have to consider is that this boundary is a permeable membrane; it's biological links with our neighbours. We never had an overlap problem until the government said we did. Although there have been wars and land has been exchanged in the past—and I'll get into that a bit later—we've always recognized the biological links that we've had with our neighbours.

Now I'll talk a little about their land, their ancient territories. The Gitanyow Nation have lived there for millennia. They're watershed-based; each of the wilp territories are discrete watershed units, the same with the Gitxsan. The boundaries are usually heights of lands or creeks and rivers. They are the fundamental, political, and economic units of the wilps; it's how the society functions. It's the responsibility of each wilp. The governance of the wilp comes through their chief, their wing chiefs and other names in the house.

I'd just like to explain something about a wilp. If you could think of a wilp as a box, it's like a corporation that exists forever, and at the top there are the chief's name and his wing chiefs' names, with names of other people in the house down the side. The names are not given to people; people are given to the names. We pass through time, through millennia, through these names. The names stay the same forever. That's how you can think of a wilp; it's similar to a corporation.

The land and family are inseparable. Our poles, our stories, our myths, our songs, all the business that's transacted in the feast, it all relates to the land. It contains resources from water, soil, wildlife, fisheries, and forests, which we've used for millennia. They're the basis of micro- and macro-economies. We've had trade with other nations, our neighbours.

Most non-aboriginal people know them as the “grease trails”. In fact, there is a cultural infrastructure. I've done a lot of mapping work in northwestern B.C., and I've found that most of the roads in this province are built on Indian trails, our trails, our infrastructure.

We defended our territories pre-contact and we're defending them post-contact. We've had land acquisitions.

These are some of the historical stories about land acquisition in the upper Nass. We've had wars with the Tsetsaut; these days, you know them as Tahltan. That particular territory was relinquished to the Gitanyow over a death. There was bloodshed on that land. That was the compensation the Tahltan gave to the Gitanyow in exchange for those murders.

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Debbie's going to explain a little bit about the government of the wilp.

Ms. Debbie Good: The dax gyet or the power over the territory, lies with each of our houses, the eight individual houses. The wilp is our seat of government. Each chief governs his own territory. He sets the laws in that territory, but our laws are set out as is agreed to by all eight chiefs and their sub-chiefs. Our element of government takes place in the feast system. This is where all business is conducted.

In regard to the political powers of our chiefs, as has been stated regarding the overlap issue, our trespass laws are one of the laws that cannot be broken. A chief acquires his power as he gains the higher seat in the feast house. Each of the chiefs in each of the territories has to agree to any decisions made by other chiefs. In our system, should a chief trespass on another chief's territory, the rest of our chiefs have the power to deal with that issue.

Sometimes that is more than just a slap on the wrist, if you can call it that. Years ago, it included stripping a chief of his title and his rights and taking the territory away from him and giving it to someone else. That is how strong our laws are. The wilps have to abide by every law of the Gitanyow Nation.

There are different types of business that take place in the feast house. You heard Glen introduce Philip Daniels. He and his brother just acquired chieftainship in the house of Gwass Hlaam. This type of feast is ongoing. It's still alive. It has never died away.

A chief, following the acquisition of a name, then proceeds to set up what is called a headstone feast, or the raising of a totem pole. Again, this shows the wealth that is distributed amongst our own chiefs as well as the rest of the Gitxsan chiefs that are in attendance at a feast. This chief has acquired the right to reign over that territory, to be the one who protects that territory.

This is something I'd like to stress again: the feast is a place of business, it's ongoing, and the laws of the Gitanyow are still alive and going strong.

Thank you.

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Ms. Darlene Vegh: I'd like to summarize for you how the feast functions as an element of government.

When we hold a feast, say it's the Lax Gibuu having a feast and say it's a death feast, there will be a transfer of a name. People will be moved into a name. With that name goes territorial rights.

I'd like to say a little about why our oral histories are so strong. It's because of the feast system.

Whole communities, entire nations, would come to a feast. All the wilps would contribute to the feast. Food would be given out to the witnesses, and the reason things are given is because the witnesses are paid to remember the transactions that happened in a feast. That's why the oral histories were so strong, and that's why we didn't need a written language until contact.

This overhead shows what the Gitanyow believe to be an act of aggression by the Nisga'a, B.C., and Canada. The solid black line is the 1999 Nisga'a claim for the final agreement, and the one I showed you earlier was the Calder case. That is the true territory of the Gitanyow in the Gitanyow world view and the Gitxsan world view and the Tahltan world view. This is why we consider it an act of aggression, because it has taken jurisdiction and ownership over the Gitxsan territories and over 84% of the Gitanyow territory.

The next map also shows the Calder case, the Nisga'a claim. It also shows the Gitanyow claim. You'll see some red and blue lines. This was done by a Gitanyow chief in 1926. He marked all the places the Nisga'a claimed, and those are marked in blue. He marked all the places the Gitanyow claimed, and those are marked in red. You can clearly see where the boundary is.

Our territorial claim has never changed. The only time this claim has ever changed is when they presented the Nisga'a Final Agreement.

Those place names have been there for 10,000 years. We know our boundaries. The Nisga'a know their boundaries. This is why we call it an act of aggression. It's very serious for us.

I'm going to highlight and summarize some of the things and the impacts that the Nisga'a Final Agreement will have on the Gitanyow.

First of all, I want to say our title is grounded in the history of our people, our legal system, and our connection to the land. The Nisga'a Final Agreement is a supreme violation of the Gitanyow and the Gitxsan ayookw, which is our laws. Under the Nisga'a Final Agreement it will force us to defend our land.

There is a map with little stars showing where those fee simple pieces of land are, which you can look at later.

The other thing is that 84% of this territory will be covered under a management regime by the Nisga'a and the B.C. government. Fisheries resources are at issue here. There's a whole number of things that are going to conflict with our social system, our culture.

When we are forced to defend ourselves, there is a piece of the final agreement where the Criminal Code can be invoked against us if we try to defend our land.

We believe the Nisga'a Final Agreement is an invasion of our birthright to our homeland.

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As I said earlier, the documentary record spans 120 years; our oral history spans millennia. The Gitanyow have waged a constant campaign to protect our land, our authority, and our jurisdiction. It's sometimes aggressive; it's always tenacious. It's a struggle that has taken place on the land, in the courts, in bureaucratic boardrooms, and in government offices. I just want to tell you that we won't go away, and we won't stop fighting for our lands.

Thank you very much.

Chief Glen Williams: Next we'll have the head chief of our community, Gwass Hlaam Philip Daniels, who will make some opening remarks, followed by Robert Good and Greg Rush.

Chief Philip Daniels (Hereditary Chief, Gitanyow Nation):

[Witness speaks in Gitxsan]

My name is Gwass Hlaam. In the Anglican Church they baptized me George Philip Daniels. Before I start, I would like to thank the Wet'suwet'en Nation for allowing the Gitanyow to walk on their territory.

[Witness speaks in Gitxsan]

I thank the Gitxsan nation.

Thank you, Madam Chair.

Honourable members, what will the standing committee accomplish? Are we being taken up another blind alley to make it look like the government cares about Gitanyow and the Gitxsan, to buy some time so the people will think Ottawa cares and listens? Is this standing committee just another smokescreen to silence the opposition? The Gitanyow will not take anything lying down. We do have our options, and we will protect what is ours. Our history testifies to that. We are still here. We still have our history, our language, our culture, and our laws for trespassers.

My uncle, the late Gwaas Hlaam, already warned the ministry of forests. They know the chiefs will use our laws, because we have never given up on our lands to any foreign governments. No foreigners have ever fought us and won a battle for the Gitanyow lands. No papers were ever signed to give up our lands and aboriginal rights. Should Ottawa and her leaders sign away Gitanyow lands, they must be ready to accept the consequences.

You only have to look at the problems in Europe, the problems with Britain and the people of Ireland, the problems Russia is having with her neighbours, the recent conflicts in East Timor, the invasion of China into Tibet, India and her neighbours, the high cost of the Vietnam conflict, and as close as those in South America. You all know of the Mohawks and what they were willing to do to protect what was theirs.

One of my brothers from the house of WiiLitsxw—his name is Biiyofxw—was already shown the gun while he was on the territory. The people who did this are our neighbours. Biiyofxw will have something to say about that later.

In closing, you, the members of the standing committee, will have the opportunity to hear in detail how Bill C-9 and the Nisga'a Final Agreement will adversely impact the Gitanyow. There must be changes made before Canada fully ratifies and gives the agreement legal effect.

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You will hear and be provided with written submissions and our proposed amendments.

[Witness speaks in Gitxsan]

Chief Bob Good (Gitanyow Nation): Madam Chair, honourable members of Parliament, you've heard the Gitanyow. You may say the Gitanyow is very small. I sat here and listened to the Gitxsan presentation. We're talking about the land. We're talking about the land that belongs to us.

In the early days of my life, my grandmother told me there was no such thing as white man around here. Now they're coming over and they're stealing our land. Here these people came around, bringing the missionaries, and they brought the book of God, the Holy Bible. There is God's given law in there, in that book.

That's where I got my learning. I never went to school, because my grandfather told me, “If you go to school, those people will take over our land. That's what they want. That's why they want you to go to school.” The missionaries read us the Bible every Sunday, and out comes the law that's supposed to be used by all mankind, not only for us, not only for you.

The first paragraph says—maybe some of you have read it and heard it in church:

Honour thy father and thy mother: that thy days may be long upon the land which the LORD thy God giveth thee.

What happened to that?

This is our land, and we're not going to give it up.

It's been very hard for me. I was just a little boy of eight years old when my grandfather refused the surveyors to go around over the land. The government used the RCMP, and those RCMP grabbed my grandfather and threw him in jail.

This is a disgrace for me. It has to be settled by the government, their wrongdoings.

Thank you, Madam Chair.

Mr. Greg Rush (Gitanyow Nation): What I'd like to do at this time is talk a bit about the act of aggression that happened to my nephew, Timothy Martin.

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On December 5, 1994, he and his two brothers were out on the territory, exercising their aboriginal rights to track and to hunt game to feed their families. They were stopped by four Nisga'a men. I have their names. These men threatened to run them over. These men threatened to shoot them. They even made comments about Glen Williams here, asking why he is giving the Nisga'a a hard time. They didn't even have an agreement in principle at the time, so you can only imagine what may happen in the territory once they sign the final agreement.

The RCMP in New Aiyansh have a file on this incident. The crown counsel has a file on what happened to Timmy and his brothers. This incident happened in Cranberry, on the road that goes back to New Aiyansh. As you can see, where the red dot on the map is, that's where the incident happened. I contacted the NTC office and talked to Rod Robinson. I told Rod Robinson what happened. He told me that it's not the Nisga'a way to stop any other first nation from using the territory, and yet my nephews were stopped.

If it wasn't for a logging truck that came along, if it wasn't for one of the men, whose name is Eric Clayton, who grew up with Timmy on the coast in Prince Rupert...if he didn't know Timmy, I'd be just talking about his memory right now. The names of these Nisga'a men who did this to Timmy, David and Brian Martin, and their friend, Chris Hill, who is a Tsimshian, are David Doolan, Rob Eli, Taylor Clayton, and Eric Clayton. Tim here was the one who identified them in a photo lineup in January 1995. The RCMP came up to Gitanyow.

This is what we'd like to avoid. This is only one of the isolated incidents that has happened in our territory. It has taken Tim quite a few years to even go back on the territory; that's how scared he was, and that's how scared his brothers were.

That's all I have to say. Thank you.

Chief Glen Williams: Thank you, Gregory, Philip, and Robert.

I'm not sure whether members have the written brief.

The Chair: I will clarify. It was handed in and was in one language. Because we have two languages in the working committee, we agreed yesterday that the briefs will be translated and distributed later. I understand that you wish your brief to be appended in its entirety in the format presented. It will be added at the end of the minutes.

Chief Glen Williams: Thank you very much.

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I just want to go through it and summarize it and what we want to talk about. You've heard briefly about who we are. We are the Gitanyow. We have a territory. We have aboriginal law, and we are connected to a territory. We have oral history that proves it.

Earlier this morning, I heard mention of a booklet called Tribal Boundaries in the Nass Watershed, which Mr. Scott mentioned. That is a very important booklet that talks about who the Gitxsan are, who the Gitanyow are, and who the Nisga'a are. It gives you a good historical record of the early explorers who were in the Nass tributary in the early 1830s and who they encountered in the territory. We advise you to read it. It supports what we're saying. It confirms where the Nisga'a territory is and it also confirms the Gitxsan in the upper Nass.

Another document I wanted to refer you to was also mentioned by the Gitxsan this morning. It is a booklet by B.C. Studies. We have appended a chapter of that to the brief we are submitting; it's appendix 6. Again, it's a summary of the tribal boundaries in the Nass watershed. It's more condensed and is a lot easier to read. It talks about Nisga'a evidence in the early 1900s, when they confirmed where the boundary is. It also talks about the Gitanyow territory and the northern Gitxsan.

It also talks about some of the experts who were involved, not only in the Nisga'a-Calder case of 1969. It looks at a professor from the University of British Columbia by the name of Wilson Duff, who reviewed that. He was an expert witness. When he testified at the Calder case he confirmed what you saw on the map earlier as to where the boundaries of the Nisga'a were in 1969. Mr. Duff also testified that he could not prove that there was any existence of, any documentary record of, any Nisga'a right or title beyond that point.

I just wanted to mention that. I wanted to talk about that a bit. I also want to get into part of the brief, which I'll summarize. Then we will go to another document called Analysis of the Nisga'a Final Agreement, and we'll hear some of our submissions on some of Bill C-9.

First of all, I just wanted to quickly cite to you some of the things in the brief. We intend to present our concerns, observations, and recommendations regarding this bill. However, these concerns, observations, and recommendations must be understood in the context of the Nisga'a Final Agreement itself and the latter's impacts on the Gitanyow aboriginal rights and title. It is also important that the standing committee be aware of the history and status of the Gitanyow treaty negotiations, as these are most directly related to the Nisga'a Final Agreement. If you look at the Nisga'a Final Agreement, paragraphs 33, 34, and 35 talk about that.

The Nisga'a and the Government of Canada have already ratified the treaty. Bill C-9 has gone through first and second readings in Parliament at a rather expedited pace. We understand that this will happen, that you will have done your job by December 1. It'll go for third reading and the Senate will take it on and hopefully complete it before Christmas. It will go to the Governor General before Christmas, and you will have the ratification of the federal government completed before Christmas. That's what our understanding is. It will take effect, and your plan is to have it in effect before the end of the year.

All of this is despite the Gitanyow's numerous efforts to bring this issue to the federal and provincial governments and to the Nisga'a with the aim of achieving a negotiated resolution. These attempts have fallen on deaf ears. It is our hope that this committee will not only listen to us but will hear us and assist us, even at this late stage, to right the continuing wrong to the Gitanyow and Gitxsan peoples that is now being crystallized in Bill C-9.

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The conclusion we have reached is that changes must be brought to Bill C-9 to ensure that the Gitanyow rights will be protected pending our treaty negotiations with B.C. and Canada. Ultimately this will mean changes or clarifications to the Nisga'a Final Agreement. You will hear our specific recommendations later in our submission.

As I mentioned when I spoke of who the Gitanyow are, we are Gitxsan people; we are closely connected to the Gitxsan that made submissions this morning. The land tenure system is the same. The connections to the territory are the same. We are Gitxsan people, but the Gitanyow always wanted to be a distinct and independent group—and continues to be. We have a lot of members who live in Gitxsan communities, like Kitwanga and Gitsegukla. In fact, some of our members live in the Nass Valley. We number about 2,000 house members.

In the past, the Gitanyow have been very active and persistent in their attempts to have the aboriginal rights and title and governance in and to the territory recognized. The Gitanyow always have been prepared to negotiate a reconciliation of these rights with Canada, British Columbia, and the Nisga'a. The Gitanyow have been very active for many years in attempting to resolve the differences with their neighbours.

But what we have sought, what we expect, and what we deserve from Canada and British Columbia and the Nisga'a is a negotiated—not imposed—settlement for reconciliation with respect to our respective rights. Some of our efforts in the past have included making a submission in the mid-1970s under the old comprehensive claims policy. We've done that and that has been accepted. Statements were made by Peter Williams in October 1984. The words you are seeing on the overheads were words he mentioned directly to the Nisga'a on two occasions. The way the Gitanyow and the Gitxsan view what is happening to them is what you have seen on the slide: it's an act of aggression.

We had numerous meetings with our neighbours in the early 1980s. We've had meetings since 1993: big meetings, small meetings, working group meetings, protocols. In the last two years, we have had the Government of Canada appointing a mediator, but that process has failed; it has not produced any results. In the past, we have tried to involve the Northwest Tribal Treaty Conference. We went to the Anglican church in Prince Rupert to utilize the assistance of the bishop at that time, to try to mediate. We went to the British Columbia Treaty Commission to try to pull people together, to try to find a solution and, hopefully, a remedy.

The latest attempts were in the last year with respect to a mediator appointed by government. Again as we're getting down to the ground rules, we find that the mediation process, the way it was designed, will not accommodate our needs. What was happening in the mediation was government and Nisga'a attempting to stretch the Nisga'a Final Agreement without maybe dealing with some of the specific impacts of that particular agreement on us and the Gitxsan.

That mediation process is in abeyance right now. We did proceed to court, and government pulled back the mediator. We were successful in court earlier this year. Now we're back into another process, which I will talk about.

We have been involved in the B.C. treaty-making process in British Columbia since 1993. We submitted a claim, the same claim you see in the territory, shown in pink. I believe that document has been circulated. It is the same territory we identified in 1830. We have a framework agreement that we initialled and signed off on February 6, 1996, shortly before the Nisga'a Final Agreement in principle was completed. The B.C. treaty process is the only game in town that British Columbia and Canada recognize for discussion and negotiation of aboriginal rights, title, and governance in the constitutional context.

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The Gitanyow have been extremely cooperative in accommodating the policy of government, and this despite the same government signing the Nisga'a Final Agreement in principle in February 1996 and later initialling the final agreement without the critical overlap issues with the Gitanyow being resolved. The Gitanyow continue to engage in treaty negotiations with the federal and provincial governments. Having agreed to an accelerated process in light of the speech regarding the Nisga'a treaty in September of this year, the Gitanyow submitted a detailed, comprehensive agreement in principle to both governments in early September. We've had some discussion since then, and that government is committed to tabling the Gitanyow offer on November 29, just a few days from now.

The Gitanyow have yet to obtain any concrete assurances regarding the issues we have with the impact of the Nisga'a Final Agreement on our negotiations. It is not even anticipated that this matter will be addressed in the joint federal-provincial offer.

The other matter that we have attempted to do, as part of the process we're involved in—we had to, because things were moving along fairly quickly—was that in early March 1998 we initiated proceedings in the B.C. court. I will turn it over to Mr. Grant right now to quickly summarize that for you.

Mr. Peter Grant (Lawyer for the Gitanyow Nation): Thank you, Glen, and thank you members of the committee.

This part of what the Gitanyow are presenting should be something taken very much to heart by all members of this committee. You may question why there is this problem now, why we are faced with it, and think that surely it's been resolved by paragraphs 33, 34, and 35 of the agreement, which chief negotiator Glen Williams will speak to in a moment. But the Government of Canada has been directed and given guidance by the courts for over two years while they were in talks with the Nisga'a before the final agreement, and they have done nothing. That's why the Gitanyow have come to this committee.

First of all, of course, in the Delgamuukw decision—and you met Chief Delgamuukw this morning—the Supreme Court of Canada said something else that was not referred to by the Gitxsan. It referred to the Sparrow decision, section 35, providing a solid constitutional basis upon which negotiation could proceed, and Chief Justice Lamer said, in 1997, those negotiations should also include other aboriginal nations that have a stake in the territory claimed. That was precisely the issue at that very moment, because Canada was in negotiations with both Gitanyow and the Nisga'a.

The Gitanyow, as Mr. Williams has said, raised this issue and were compelled to go to the court to say they were not acting in good faith, and Canada and British Columbia tried to throw that case out without any hearing of the merits. On June 17, 1998, prior to the initialling of the final agreement—and that's very important for you to consider—Justice Williamson of the B.C. Supreme Court said, commenting on the Gitanyow submission, that the Gitanyow seized, in particular, upon Chief Justice Lamer's observations that these negotiations should include other nations. They submit that in binding themselves to conclude an agreement that complies with the principles set out in the agreement in principle, Canada and British Columbia are “heading for a cliff”. That is, Canada and British Columbia, by binding themselves to an agreement that already encroached so severely on the Gitanyow in the agreement in principle and saying they would not change that, were heading for a cliff. Justice Williamson said this:

By this they mean that a final agreement, consistent with the principles to which the governments have already bound themselves, will result inevitably in a challenge by the Gitanyow to the Nisga'a agreement on the basis that the Gitanyow's aboriginal title and/or rights in respect of lands to the Nass valley, constitutionally protected by s. 35(1)...have been violated.

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He then went on and he recognized that there was a legal issue. He said:

Considered in light of the overlapping claims of the Nisga'a and the Gitanyow for aboriginal rights in the Nass River valley, such an executed agreement can impose serious limitations upon the freedoms of all parties to negotiate the Gitanyow claims.

In other words, he saw the problem immediately. It's obvious to you when you see those maps. How can Canada negotiate in good faith with the Gitanyow about the same territory that they've already given up those rights for—in fisheries, wildlife, and other aspects that Mr. Williams will speak to? They've already given them up. They've already said that those are Nisga'a treaty rights. How can they do that?

He said “Such a limitation cannot be dismissed as hypothetical, surmised or imagined.” And he commented on the basic minimum of the crown's duty, Canada's duty, of course:

Arguably, that duty is to conduct treaty negotiations in good faith in a manner which will take into account all aboriginal nations which have a claim in a specific area as suggested by [Chief Justice] Lamer....

He then gave Canada and British Columbia a serious warning and attempted to give them guidance in treaty negotiations. This is in June of 1998 still. He said:

...myriad Court applications seem inevitable unless the treaty negotiation process deals with overlapping claims.... I think it inevitable that if the parties fail to deal with the conspicuous problem of overlapping claims, they may well face Court imposed settlements which are less likely to be acceptable to them then [sic] negotiated solutions.

In June of 1998 he said that.

Surprisingly enough, the result of that was paragraphs 33, 34, and 35, which never appeared in the AIP, and it was modified. That was the answer of Canada and British Columbia to it. We will come back to the problems with that and what we need this committee to do to protect Gitanyow in the face of that agreement.

In March 1999, on the duty to negotiate in good faith, the court found that the crown did have a legal duty to negotiate in good faith. He said:

...the duty must include at least the absence of the appearance of “sharp dealing”...disclosure of [all] relevant factors...and negotiations “without oblique motive”....

For two years before this agreement was initialled, Canada got directions from the courts as to how to address this issue. The negotiator's answer to it was “We wash our hands of it. Go talk to the Nisga'a.” Mr. Williams has told you about the 16-year effort of doing that.

I heard one of the committee members this morning, I think it was Mr. Finlay, say that this is so sad. Why would the Nisga'a and the Gitanyow not talk? Because there's a difference. And the difference is that the Nisga'a have an initial final agreement and they've got both governments behind them. Now why would any sharp-nosed and hard-nosed negotiator—and the Nisga'a have been at it for a long time—not take advantage of that? Why do they need to talk to the Gitanyow when they have the endorsement of the crown of Canada? That's the problem, and we have some remedies that we think this committee can use to help this problem.

In any event, what I wanted to state was the treaty commission, and this is submitted also in the brief, is.... Mr. Williams referred to the fact that we've gone to the treaty commission. You heard about that this morning as well. The treaty commission addressed this. In appendix 1 to our brief, you will see the treaty commission's comments. What did they do? After the Delgamuukw decision the treaty commission—and they of course are the keeper of the process, they are the only game in town—said this:

Unresolved overlaps assume greater significance as the treaty process [in British Columbia] progresses. The issue has been raised with the Treaty Commission by the Treaty Negotiation Advisory Committee—the province-wide advisory body to the federal and provincial governments—the Union of BC Municipalities, the Select Standing Committee and various First Nations outside the treaty process.

It continues with the specific example of this very issue:

The overlap dispute between the Nisga'a Tribal Council and the Gitanyow Hereditary Chiefs, now before the courts, underlines the potential for unresolved overlaps to delay completion of a treaty and to precipitate litigation. It has also focused attention on the need for established mechanisms to deal with unresolved overlaps.

In its report, the treaty commission said it believes that:

...the experience in BC and elsewhere will lead the parties to conclude that it is essential to resolve issues relating to overlap claims early in negotiations, well before the parties agree to the contents of an Agreement in Principle.

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That is concluded by recommending guidelines to the three parties—Canada, government, and First Nations Summit—that:

...absent an overlap or other relevant agreement, other First Nations with an interest in the overlap join the First Nation, Canada and British Columbia at a common table to address issues arising out of overlapping territories....

They made those recommendations. Of course, with Canada saying, well, it's up to you, the Nisga'a didn't have to go to that table. And they didn't. Why would they bother? They didn't need to negotiate any differences.

Now, there's another point I want to make here. You, members of the committee, with the exception of Mr. Finlay, Mr. Turp, and any others who have experience in other areas of these issues, may say, well, this is something new. But it's not new, because 25 years ago, the Quebec and Canadian governments, in the James Bay and Northern Quebec Agreement, specifically addressed this. They had to deal with an overlap. They dealt with that overlap. Complementary Agreement I specifically amended the James Bay and Northern Quebec Agreement to include the issue of the overlapped parties.

There is a method to resolve this, but it takes the will of not just the first nations but also the parties. That is critical.

So there is an example, and there is work that can be done. This committee of course cannot amend the final agreement but can amend the legislation, as I believe Mr. Scott raised earlier.

Mr. Williams now will speak to certain specific examples of issues within the agreement itself.

The Chair: Before you start, I just want to say that this session will end at 2.30 p.m. I would like to make sure that you leave some time, at least half an hour, for a round of questioning.

Thank you.

Chief Glen Williams: I want to deal with some of the more specific issues regarding the impacts of the Nisga'a Final Agreement, as outlined in our brief.

Part of the submission we have provided is called the “Analysis of the impacts of the Nisga'a Final Agreement on Gitanyow Aboriginal Rights and title”. We call the document “Legislating Injustice”.

We have gone through the Nisga'a Final Agreement chapter by chapter and cited the flagged areas of the sections. We've looked at the issues. I now want to refer to, in this document, the lands section. I'll read you briefly the clause of the Nisga'a Final Agreement that we have concerns about. I will quickly go through access, the fishery, wildlife, and the implementation part of it. Peter will do the general provisions, and then we will offer our specific recommendations.

Part of chapter 3 of the Nisga'a Final Agreement states:

On the effective date, Nisga'a Lands consist of all lands, including islands, within the boundaries set out in Appendix A....

I believe the map there shows appendix A. These are the Nisga'a lands here. Part of the area we're talking about is a small portion that comprises about 20 square kilometres in here.

A while ago you saw the overhead of all the fishing sites. This is the small area we are quite concerned about that has been included in the Nisga'a lands. That's what this clause is referring to.

The issue for us is that the Nisga'a lands include prime historic fishing sites on the south shore of the Nass River, both upstream and downstream from the Kinskuch, including the ancient village of Gitsheoaksit.

In that area here, as you see on the overheads, there are some prime fishing sites. It's a big canyon along this river here, and this is where all our fishing sites are.

If you look at the next clause in the lands chapter, on the designation of Nisga'a lands, it says:

Nisga'a Private Lands include:

a) lands in which Nisga'a Lisims Government creates an exclusive interest; and

b) lands that are otherwise required for uses that are incompatible with public access, including commercial, cultural, or resource development uses.

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The issue for us is whether the Gitanyow fishing sites described were declared as Nisga'a public lands, village lands. How will we be assured that we will continue to have access there? So that was one area.

In the Nisga'a Final Agreement, still on the lands chapter, paragraph 29 states:

On the effective date:

the Nisga'a Nation's title to Nisga'a Lands is free and clear of all interests...every interest that, before the effective date, encumbered or applied to the lands that are Nisga'a Lands, ceases to exist.

Does that mean you are now extinguishing our rights here? Does that clause say that? Is that what it will apply to?

I will go now to the chapter on access, page 80, which says:

Nisga'a Lisims Government will provide reasonable opportunities for the public to hunt and fish on Nisga'a Public Lands but, as the Nisga'a Nation is the owner of the land on the effective date, only Nisga'a citizens have the right to hunt and fish on Nisga'a Lands.

Again that area, “Nisga'a lands”, where only the Nisga'a have the right to fish and hunt, that's what the language is talking about here. What certainty does that provide for the Gitanyow?

Next, in the fisheries chapter, paragraph 77 reads:

On the effective date, the Parties will establish the Joint Fisheries Management Committee to facilitate cooperative planning and conduct of Nisga'a fisheries and enhancement initiatives in the Nass area.

If you look at the Nass area in the definitions section of the Nisga'a Final Agreement, the Nass area is a big concern. I don't have a map here, but the Nass area is the entire Nass watershed. Again, that includes what was mentioned earlier. I'll point to this map here. There's the Gitanyow territory there. The Nass River comes through here and goes right through the Gitanyow territory and all the way up in Gitxsan territory.

That's a problem. The Gitanyow and the Nisga'a are not involved in the Nisga'a joint management committee, although our rights are going to be impacted.

On page 116, paragraph 83 of the fisheries chapter reads:

The Parties acknowledge that fisheries management may involve the consideration of issues on a regional or watershed basis. If Canada or British Columbia proposes to establish fisheries management advisory bodies for areas that include any part of the Nass Area, Canada or British Columbia will consult with the Nisga'a Nation....

Again, the issue here is that Canada and B.C. recognize only that the Nisga'a are the only aboriginal group on the Nass. That's the problem. The same thing goes for wildlife. They are the only group recognized. As both Greg and Peter have mentioned, they are the only group.

They don't have to come to a watershed process, although we have initiated that process with the neighbours, the Tsimshian on the coast and also the northern Gitxsan. We have signed an MOU that we work together, but the Nisga'a are reluctant to come to that process, which will be, from our perspective, one of the remedies.

So I just wanted to quickly flag those. I'll let Peter deal with the general provisions chapter. Then we'll go on to our specific recommendations.

The Chair: Mr. Grant, do you have any idea how long you'll be?

Chief Glen Williams: He'll be about 10 minutes.

The Chair: I need to have at least one round of questioning, for which I'll need thirty minutes, so I'll give you another five minutes to complete.

Thank you.

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Chief Glen Williams: Okay. Thank you.

Mr. Peter Grant: Just to alert you, what Chief Williams has raised in the brief is the legislating of justice.

I believe the member isn't here right now, but he raised questions about paragraphs 33, 34, and 35. It's charted in the brief where difficulties are raised by that. I won't go into that.

In the brief we also talk about certain of the provisions.

On the last two pages of the brief we come to what we consider to be critical, and that is what we think this committee can do.

We propose that there be the following minimum changes and additions to the bill to ensure the Gitanyow aboriginal rights, title, and governments are protected and that overlap issues yet to be resolved be resolved once and for all. These are minimal changes, notwithstanding our concerns about paragraphs 33, 34, and 35.

First of all, we ask that you add the non-derogation language to the bill. In the bill itself the whole agreement is given force of law under subclause 4(1). Still Parliament thought it necessary to specifically refer in clause 5 to the final agreement being binding on all persons, to repeat the conflict and inconsistency provisions of paragraphs 52 and 53 of the final agreement in clause 6, and to repeat that it is a treaty and land claim agreement within the meaning of sections 25 and 35, although that's in clause 3. In other words, even though the bill itself refers to the agreement having the force of law, you make reference to specific references.

So if Parliament has specifically selected these as reflecting fundamental aspects of the final agreement to be repeated in the bill, we submit that the non-derogation language—which one of the members, I believe from the left of us, kept referring to this morning—paragraphs 33, 34, and 35, be included. This is not unprecedented. In fact, in the Migratory Birds Conventions Act Parliament has done the same thing. So there's non-derogation language and the protection of aboriginal rights. Our first recommendation is to repeat those provisions in the bill.

However, the inclusion of those does not entirely rectify the issues, because the purported protection under paragraph 35 is contingent on Canada and B.C. agreeing to conclude treaties with other aboriginal peoples, which may be inconsistent or conflict with the Nisga'a Final Agreement.

There's no provision in the agreement that you're required to make those amendments. So in our brief, which we had anticipated you would have, we propose that the following addition be made to the bill: the ratification of the Nisga'a Final Agreement may not be invoked by Canada as a reason for not concluding a comprehensive treaty with any other aboriginal group. In other words, what you've endorsed for the Nisga'a would not be used as a bar to negotiating with the Gitanyow, which is precisely what the Supreme Court of Canada and Justice Williamson of the B.C. Supreme Court have advised.

The final recommendation, number 3, is the suspension of the coming into force of the Nisga'a Final Agreement. That refers to adding to the bill subclauses 27(2) and 27(3), which relate to the “day or days to be fixed by order of the Governor in Council” that appears in clause 27.

We propose that you make the following additions: an order of the Governor in Council contemplated in subsection 27(1) will provide that the coming into force of those chapters or paragraphs contained in the Nisga'a Final Agreement identified in the order be suspended for such time as the overlap conflicts with the Gitanyow are resolved or the finalization of a Gitanyow treaty, whichever is earlier.

Secondly, we would add subclause 27(3): the order in council contemplated in subsection 27(1) will also establish a process through which Gitanyow, Nisga'a, and British Columbia may participate with Canada in an effort to resolve the conflicts between the Gitanyow and Nisga'a arising from the Nisga'a Final Agreement, which process may include, if the parties agree, binding arbitration.

Finally, if the Gitanyow concerns over overlap issues cannot be resolved, the Gitanyow request that the standing committee make a strong recommendation in your report that Canada support the litigation costs of the Gitanyow in having to continue to protect rights and interests in the courts, as well as increased negotiation costs due to the issues.

So we are asking for specific amendments, which we say are minimal ones, that will not derail the agreement and do not require you to amend the agreement, but will lead to Canada protecting both the Gitanyow and what they've committed to the Nisga'a, and ensuring that there is a process in place whereby these matters can be addressed.

Those are our submissions.

The Chair: Thank you.

Mr. Scott, go ahead, please. You have five minutes.

Mr. Mike Scott: Thank you.

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I really appreciated the presentation you made here today. I thought it was very complete. There's not very much I have to ask, other than one thing.

It strikes me that if I were in your position, having gone through what you've gone through for a number of years, I would have developed a feeling that both levels of government had taken a position with respect to who they were going to support when it came to the issue of overlap.

Mr. Williams, is that the way you see it? Is that how the Gitanyow people see it? Do they feel the federal government has taken a position with respect to the overlap that has prejudiced your position?

Chief Glen Williams: After all the experiences and the attempts we've made to try to meet with the federal government, that's clearly our view.

Mr. Mike Scott: Okay. For the benefit of members of the committee, Mr. Williams, I don't know a lot, but I do know, from living in this area all my life, that there are some historical relationships between Gitanyow and Nisga'a as well. Those relationships must be strained as a result of this unresolved overlap situation. Is that adding an additional hardship for individuals within both of those communities as a result?

Chief Glen Williams: There are some differences. To answer your first question, in 1889 the majority of Gitanyow people moved down to the Nass communities and remained there. From what we hear there are about 5,000 Nisga'a. In our estimation, about 40% of those people who think they're Nisga'a may actually be Gitanyow or Gitxsan. There are some very good relationships between some of the ordinary people who live in the communities of Nisga'a. Some of them are chiefs who support and agree that the Gitanyow are correct about where the boundaries are.

Mr. Mike Scott: I'm trying to flesh this out for the benefit of the committee members who may not be as familiar with this as you and others who live in this area. Until the intense negotiations with the Nisga'a began for a final agreement, or an agreement in principle, the picture I have is that the Gitanyow and the Nisga'a were good neighbours and got along without a great deal of difficulty. I appreciate there was conflict from time to time, but in essence it was not a difficult relationship until this issue came along. Is that a fair way to characterize it?

Chief Glen Williams: That's right. The people got along fairly well. The only real flare-up was, I believe, in 1992 when both governments entered into an interim protection agreement with the Nisga'a. That really flared things up between the two nations.

Tensions flared again in 1996, with the AIP, and again in August 1998. We have heard the different chiefs say today they feel this is really a theft of their land. We're at this late stage now where the government is going to constitutionally protect that theft.

Mr. Mike Scott: Thank you.

The Chair: Mr. Bachand.

[Translation]

Mr. Claude Bachand: We have listened to your presentation with great interest. As far as we are concerned, we somewhat agree with you. We have also heard the Gitxsan's presentation this morning.

Our concern, and I use your expression, Mr. Grant, is to not derail the Nisga'a treaty process. This is an important concern to us.

You were here this morning, and you know we offered to meet with the Gitxsan. Today you are presenting texts which are somewhat legal and which could be added to the tentative solutions we discussed with the Gitxsan at lunchtime.

If, in your texts, we added the name of the Gitxsan to that of your nation, your presentation would have much greater strength, because it would be on behalf of two nations affected by a treaty, which for the moment are excluded from this treaty and whish to take part in this treaty.

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We may have found other ways to do things. Would you be opposed to the inclusion of the Gitxsan in your legal texts? Also, would you agree to meet with us, as the Gitxsan do? If need be, we could call you back afterwards because we will have the legal aspect of the texts analysed. Would you be willing to participate in other meetings so that we can inform you on the tentative solutions we may have found at lunchtime?

[English]

Chief Glen Williams: Yes, we would be prepared to have discussions with the Gitxsan. We had discussions with the Gitxsan late last week to coordinate some of our efforts. Certainly, from what I've heard this morning, the Gitxsan have put forward what we call a suspension.

We have specific language that we've put forward to you. We've also talked to them about non-derogation, to protect our interests. I think that should happen soon, before ratification or the bill taking legal effect. We see the timetable.

As we said earlier, we are very supportive of our neighbours, the Nisga'a, having an agreement. But again, like our neighbours the Gitxsan said this morning, that must be in their territory. We've said that in the past, and we'll continue to say that. Suspend those portions of their territory in the Nisga'a Final Agreement. We are prepared, and that should happen soon.

[Translation]

The Chair: Do you have another question?

Mr. Claude Bachand: Yes, a more specific question for Mr. Grant.

Mr. Grant, were you here this morning when the Gitxsan made their presentation?

Mr. Peter Grant: Yes.

Mr. Claude Bachand: Could you give me your opinion on the tentative solution we examined for the implementation of the treaty? The implementation chapter of the treaty is separate from the agreement. In other words, it is not part of the agreement. Chapter 21 is not part of the agreement. You heard these questions this morning. According to you, could this be a solution to help both nations emerge from the unfortunate situation they are currently in?

[English]

Mr. Peter Grant: Thank you very much.

We looked at doing that after implementation. The very problem—and it's reflected in this legislating and justice appendix, which Mr. Williams was going to refer to but we ran short of time—is, for example, the harvest agreement. That comes in immediately upon ratification. So unless there's a suspension of certain provisions, implementation of the agreement encroaches on the rights of the Gitanyow and the Gitxsan, as they described this morning, in a major way as soon as the agreement is signed.

As I understood from the Gitxsan presentation, a period of time has to be allowed to address these issues in which the government endorses that. But this is not a derailing of the process; it is a protection. This is why the Gitanyow—one of the members across mentioned that it was the Gitxsan—are in an accelerated treaty negotiation process, as reflected in our brief. We are trying to do what we can to protect the Gitanyow interests while this process is going on.

The final agreement says that “upon ratification”—of course this is the final ratification—“the harvest agreement comes into place”. Angling guide licences would immediately impact a huge range of Gitanyow territory. How could the government then negotiate with the Gitanyow and say, well, you can have fishing rights there too? They would have given them away to somebody else. So that's the problem, and these are the kinds of complex issues that have to be addressed.

I believe in James Bay, in northern Quebec, it took two years to deal with the complementary agreement, but it was done. It was done because all parties—Cree, Quebec, and Canada—said, we have to do this, and they just allowed the opening to do that.

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The Chair: Thank you.

Madame Hardy.

Ms. Louise Hardy: I'd like to thank you for coming.

I think what really worries me is that there's already a precedent against what you're asking. I don't know if you're familiar with the Mackenzie Valley, but three of the five first nations in that area were asking that the extra-territorial application of the first two bands not be applied to them until their claims were settled. That didn't happen, and I see that as very similar to what you're asking for. In fact, legislation went ahead on what was agreed to for the first two first nations and it did in fact apply to the other three. So I'm really worried, and I didn't support that.

I guess the other thing that bothers me is that this whole treaty process comes to Parliament at the very end. Here we are, in the last hours, hearing from witnesses who have very important information that should have been heard by Parliament. I wouldn't have been in Parliament before, but if there was some other process to deal with these kinds of concerns before the last hour, it would make a huge difference.

I know you support the treaty process. I certainly support it. I've seen the benefits of it in the Yukon. But I don't support you losing your rights so that other first nations can have their rights. I don't think that's supporting the treaty process.

Those are my concerns.

The Chair: Would you like to respond?

Chief Glen Williams: No.

The Chair: Okay, Madame Hardy, you have more time if you wish.

Ms. Louise Hardy: No.

The Chair: Thank you.

Mr. Keddy.

Mr. Gerald Keddy: Thank you, Madam Chair.

I'd also like to welcome the chiefs and members today. You've certainly raised some extremely interesting points, and there were a number of similar points raised this morning.

I'd asked for some clarification of paragraphs 33, 34, and 35 previous to hearing what you had to say, and I was most interested in hearing your recommended amendments. However, I just want to go through paragraphs 33 and 34 once again and how this relates to subparagraphs 34(a) and 34(b). It's stated:

Nothing in this Agreement affects, recognizes, or provides any rights under section 35 of the Constitution Act, 1982 for any aboriginal people other than the Nisga'a nation.

We're all well aware that it's a treaty for the Nisga'a nation. They're not saying it's a treaty for nor is it to affect any other aboriginal right or any other aboriginal nation in their treaty processes.

It goes further than that in paragraph 34, setting down guidelines for a process before the courts to settle disputes. I realize that's not the perfect way to do it, but I want your opinion on the legal process. It says:

If a superior court of a province, the Federal Court of Canada, or the Supreme Court of Canada finally determines that any aboriginal people, other than the Nisga'a Nation, has rights under section 35 of the Constitution Act, 1982 that are adversely affected by a provision of this Agreement....

There are the two sections there to deal with it. The first one, subparagraph (a), says:

the provision will operate and have effect to the extent that it does not adversely affect those rights.

What they're actually talking about is some type of joint jurisdiction, or an overlaying of jurisdictions for both sets of rights that would be represented. If that's not agreeable, it comes down to subparagraph (b), which says:

if the provision cannot operate and have effect in a way that it does not adversely affect those rights, the Parties will make best efforts to amend this Agreement to remedy or replace the provision.

It then goes on to say that the federal government is responsible, that if the Nisga'a lose any rights or lands or access to properties, the federal government has to replace those lands with either more lands or dollars, I would assume, in the provision.

Is that the way you understand that provision to be read?

Mr. Peter Grant: Yes, but there are some very....

First of all, this is a provision that was raised this morning both on the other side and here. First of all, a very serious concern of the Gitanyow is that, unlike other provisions such as in the legislation, this legislation applies to all other peoples, this paragraph 5, okay? The legal conflict is between the fact that the provision that this agreement is binding as law on all peoples, including Gitanyow, is in the legislation, but this non-derogation language is not in the legislation. A court may say that Parliament obviously thought the binding provision is much more important than non-derogation. They have to deal with that conflict because one is only in the agreement, and one is in both the agreement and in the legislation. That's one point.

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The second point is that paragraph 34 is quite strange in a way. That's why I said it certainly first arose after June 1998, which is interesting because it's contrary to the stated policy of Canada and British Columbia that there should always be preferred negotiations.

This is what it imposes on the Gitanyow. The Gitanyow will have to take to court that they have what Ms. Vegh described about their rights to the fisheries on these tributaries, the rights to angling guiding. They'll have to go all the way through the courts. It's a final order. They may have to go to the Supreme Court of Canada on all these different issues or on a large aboriginal title case such as Delgamuukw. Only at that point in time will this section be triggered.

So Parliament is here legislating. It is in fact saying in the agreement to go to court, to not negotiate, which is of course contrary to Canada's stated policy. Even having said that, at least if that was in the legislation it would protect it.

Monsieur Bachand asked about the Gitksan, and the Gitksan chiefs are here. Through communications and before, they do endorse support—it wasn't in their submission, it was in ours—and would like this legislative amendment as well, in answer to that question.

The Chair: You have time for a small question.

Mr. Gerald Keddy: Just getting back to the treaty in front of us, we discussed this morning the difficulty of changing this document. It is extremely difficult to change the document, the treaty, and the legislation, because the treaty has been signed by all three parties already, including by the federal government, signed by the Prime Minister. It's going to be very difficult to amend the process.

You've stated very clearly that you have already been through years of negotiation, that you've been through the lower court system. I don't know if you've been to the upper courts or the higher courts, but certainly you've been in court over this issue. There has been a fair amount of negotiation and litigation, and you haven't been able to formulate an agreement. I'm not trying to renege on any responsibility that we have as members of Parliament, but I'm wondering if it's practical or even possible to avoid the Supreme Court on this issue.

Mr. Peter Grant: If our proposed amendments are put in place in the bill—no amendment to the final agreement, but in the bill—Canada will be encouraging a process to say that it's not on one side. I think Mr. Scott asked if we're on one side or the other. We're not on one side. We want both of you to resolve this, because we are part of this. We support the Nisga'a Final Agreement and we support the Gitanyow treaty process. It would start to put Canada into the face of being neutral, of being fair to both sides, and of pushing the agenda for both sides. These are minimal amendments. It's not everything we would like to see, because we would like to see the agreement changed, but that's not something you can do.

The Chair: Okay, thank you.

For the final round, Mr. Iftody, please.

Mr. David Iftody: Thank you, Madam Chair, and thank you very much, friends, ladies and gentlemen.

Mr. Good in particular, I was once again impressed with your interventions. This is the second time I've heard you. I think I met you in my office a number of months ago, along with some other representatives. We've had these discussions, and I think you spoke very eloquently again. I just appreciate who you are and what you believe. Thank you.

Madam Chair, I have a few questions to go through, and some general comments. Gosh, I wish I had more time, because we've heard so much information from the witnesses.

I'll start first with an observation. I'm very familiar with the James Bay and Northern Quebec Agreement. I worked as a consultant to Chief Billy Diamond for a number of years, so I'm familiar with its provisions. I'm familiar with the people who drafted it, and I'm very familiar with Chief Diamond. He's a good friend of mine.

You probably know that in the signing of the Nunavut agreement, there recently was an action and concern brought forward by the James Bay Cree and others from a group of islands stretching far beyond what would seem to be the normal boundaries of Nunavut. There was some argument of a common-law usage of those islands for fishing and other kinds of purposes for the Cree. This of course is very similar to what we're dealing with here, in that it was an eleventh-hour or one-minute-to-midnight kind of intervention at that time with respect to these provisions. I believe there were some injunctions filed. I'm not too clear on that.

• 1415

At the end of the day, however, in my discussions with people representing the Cree-Naskapi and the Cree people generally, the Grand Council of the Crees, I don't think they wanted to push the issue to the point where there would be, as Mr. Scott was suggesting, a confrontation. I don't think that was ever there.

Mr. Grant, before you answer this question, I would like to put that to you. Are you advising your clients under these kinds of circumstances that confrontation is either A, a good thing, or B, a possible thing for them? I would like you to answer that after I'm finished with a couple more questions.

The second point I'd like to make is that what you are raising in terms of these negotiations post-Nisga'a is one of the matters in the Court of Appeal, as you know. So maybe we'll let the appeal court rule on that, and we perhaps will have further clarification on that particular matter when that comes out of the court.

You're right, there was a recognition of a fiduciary duty to negotiate, but there's still no clear answer from the courts—and you cite some of the decisions there—about whether that has been resolved or not. So we still have to hear on that.

The third thing I'd like to mention is, in the whole discussion of paragraphs 33 to 35, and you point out paragraph 34 being included after the fact, but admittedly...and I think you've talked about the power of those paragraphs, generally speaking, to have force and effect. Certainly in Bill C-9, when it's brought into the House of Commons and brought into law, would have those stronger forces and effects, ostensibly and I think materially, to protect your interests or the interests of the Gitxsan and Gitanyow.

If you read those provisions, I think they're quite clear. I would like to reverse that position, if I could, and say you're the chief negotiator and chief lawyer for the Gitanyow. If after years of negotiations you settled for 8% of what you have on the map there, if there was 8%, wouldn't you want to include paragraph 34 to protect some of your rights and the rights of your clients? Wouldn't you be doing a proper thing to include that as a prudent lawyer to protect their interests in that agreement? I would suggest that you probably would want to.

So I'll put those three things to you, given the limitations of time.

The Chair: Thank you very much.

Who would like to go first? Mr. Grant.

Mr. Peter Grant: I don't know if I'm allowed to breach solicitor-client privilege, so I'm not going to talk about what I tell all my clients. I'm sure you understand. Sorry. For the few of you who are lawyers and for all the rest, I'm bound by certain rules, obviously.

But in the history that has been described, when you talk about confrontation—I think you were here when Mr. Rush described what happened to his nephew—these are the things that are happening on the ground; these are not things that lawyers are advising their clients to do.

Mr. David Iftody: I have a point of order on that particular question. I listened to that evidence as well and there was nothing at all to suggest in this particular confrontation with those gentlemen who were listed, which was repeated in the testimony here by the band council police officer, tying that confrontation, however unfortunate and illegal it may have been, to the negotiation process; that somehow the Nisga'a were sending out people to confront.... I hope you're not making that connection.

Mr. Peter Grant: No. What I'm saying is there's a dynamic of people's expectations in treaty negotiations. Ordinary people have understandings or misunderstandings. That's what happens. When you pass laws, people have expectations. It's not that the Nisga'a sent people out; that's not the issue. The issue is that these are ordinary people saying, oh, this is our land now.

• 1420

That's all we're talking about. That's the kind of thing that is a problem.

In any event, what I want to say about the Court of Appeal issue is that the way I understand the law, the law is as a judge states it. You're dealing with this now, and Mr. Williams referred to the fact that nobody has denied it about the accelerated process. Right now the law is as stated. That's what you and I and my clients, everybody, are bound by.

The third point you raised is about the 8%. If you had listened carefully to what Ms. Vegh was referring to there and you looked at the Calder 1969 map, which the Nisga'a presented in court, it's 25%, not 8%. It's 25% of their territory. So maybe that's not a big difference.

But the key point I want to come to, and that I would ask you or the government representatives at this table, is this. You've put certain provisions of the final agreement in the draft legislation. This morning we heard you speak to Delgamuukw and the Gitxsan and say “Look at paragraphs 33, 34, and 35; you're protected by that.” You say that now; the government says that to the Gitanyow. The Gitanyow say “Okay, put it in the bill, just like you did those other provisions.” Why did the government not put in Bill C-9 these paragraphs that you say are critical to protecting the Gitanyow?

Mr. Keddy says it's going to be very difficult to amend even the bill because it will look bad. But what will look worse? This is the first legislation coming out of the B.C. treaty process in Parliament, and this is going to be the model. It will be much harder after this one, and this committee can correct that.

So I think the Gitanyow would like to know, is there a problem with the committee recommending putting those in the bill so that they have the same power as these other provisions and so that the ambiguity of something that's in the bill and the final agreement, as opposed to something that's not, is not there for these paragraphs? Then the Gitanyow can at least say “They're serious; they've tried to protect us.”

The Chair: I'm going to summarize here, and by doing that we're going to thank all our witnesses who have presented today.

We'll suspend for five minutes as witnesses leave, because we go to our next witness immediately after.

Thank you very much. We appreciate your testimony. I think it has been helpful for us in our understanding.

• 1423

• 1433

The Chair: Thank you very much. I believe we have introduced ourselves during the first part of this meeting, so we'll just commence.

I want to welcome our second witness, appearing as an individual, Mr. Jim Davidson, the former mayor of Smithers. Mr. Davidson, this session goes until 3.15 p.m. I'm telling you now that I want to allow at least one round of questioning so you can have some interaction, so I would suggest 10 to 15 minutes maximum in your presentation to us.

The floor is yours. Welcome.

Mr. Jim Davidson (Individual Presentation): Thank you, Madam Chairman, honourable members of the House of Parliament.

I'm here in rather a strange position, because I got the opportunity to represent the people of this area, not by choice but by designation. I want to say that I really appreciate the fact that this House of Commons standing committee did come to this area.

I'm sure you've already heard enough to understand how important it is to us that you came.

If you think it was important to the Gitxsan and the Gitanyow, I can assure you that it's just as important to the rest of us who live here.

I don't know why I was chosen, and maybe, like them, I can claim I was born here. I can say this is my land. I can say it with all my heart. This is where I was born and this is where I will die. This is where my father and my son are buried. I can tell you that I feel as much a part of this land as my brothers and sisters who spoke for the Gitanyow and the Gitxsan.

• 1435

I'm glad you came, because this is the first treaty in many years, since Douglas, I think, or maybe the Treaty 8s, depending on how you look at it. But we're here, and I have to try to speak to you from my heart, but also on behalf of all the other people, the ones you haven't heard, the ones who have said to me that they wanted the right to speak. We're a part of this too. So I will begin my remarks.

I'm quoting from Chief Joseph Gosnell, when he spoke to the Vancouver Board of Trade on February 24, 1998. Chief Gosnell said:

What we want is simple. We want to be equal and full participants in the social and economic life of Canada.

He went on to say:

Our young people grow more insistent on becoming equal partners in the Canadian community.

I think I can tell you that most people evaluating treaties on this basis would say that's exactly what they want too: to be equal, to be full participants in the social and economic life of Canada and this part of British Columbia, and to be a part of this community. Treaties are about relationships, and surely you heard that all day long. It is the relationships that aren't right that you need to worry about. The ones that are right will take care of themselves. What's wrong with what's not right?

We began—and I say “we” as all of us together—when the government came together after the first decisions in Delgamuukw and in June of 1994 drafted, with the Gitxsan and the Wet'suwet'en, what was called a treaty of recognition and respect. It wasn't a treaty, but an agreement of recognition and respect. They said at that time that in 18 months they were going to put something together. Well, it didn't happen, did it? And it hasn't happened yet, has it?

But we have got started, and we do have in our hands now one treaty. I don't think it's perfect, but I do think it achieves some things. It is a beginning. It sets out that relationship between the Nisga'a and British Columbia and Canada, and that's great. But the Nisga'a have lived in a valley away back from most of us and they have fought for this for 100 years. The impact of this treaty is going to be on all of us, not just the Nisga'a. If we isolate the Nisga'a treaty and say, well, okay, it's just the Nisga'a and it's just the Nisga'a Valley, we could probably say it looks really good—and I think much of it does.

But you have to realize that the impact is on more than the Nisga'a, and you've heard it today. The impact is on the Gitanyow and Gitksan, and it's on all the rest of us, the Wet'suwet'en. This business of treaties is not about Ottawa or Vancouver or Victoria; this business of treaties is about Smithers, it's about Terrace, it's about Burns Lake, and it's about Hazelton. This is the place where treaties are going to be worked out. And we are the people, all of us are the people, who are going to have to make this work.

• 1440

I have heard it said that some people have trouble with the treaty settlement lands—and this is my opinion, and my opinion only, but I hope not totally my opinion—but self-government and administration of lands, collectively, is not a problem in Canada. Honestly, it's not. Who has heard much moaning about the Hutterites lately? Essentially that's what we're talking about. So when the people of Nisga'a want to administer their lands collectively, I have no problem with that. There are corporations with more assets and more control than the biggest self-governing first nation is ever going to have. I don't see that as an issue. What I do see as an issue is how we make this economic opportunity work for all of us, because it really has to.

I've been here quite a while—not 100 years ago—but there really was a time when fish and furs were economic wealth. If you've been following B.C.'s woes, you'll know that fish and furs are neither any more. What with fish farms and problems on our rivers, what with—I'd better be careful. I'm a farmer and I like animals, but I have to watch what I say. Let's say animal rights activists have made the business of fur farming questionable. Really, is there a future in being the fur people of the northwest? Is the animal wealth of the Nisga'a Valley really that great? Forty years ago timber was great. I can remember because I was there then, in the 1950s, when this valley was full of sawmills and we all worked—and I'm talking about economic opportunity for all of us. If we had our hands and our ambition, whether we were native or non-native, we had an opportunity. But that type of economy moved on too. From small sawmills, we came to multinational corporations that worked the forest industry.

What is going to be hard in this treaty is the doing. When the Nisga'a get down to it, this equal and full participation is going to be really hard. We're going to have to build local relationships; we're going to have to find a way to really work together. And when I say this, I worry about things in that treaty, like the social and health concerns where it separates us into groups, where it seems we're designing two separate systems for separate people, and we aren't, and we can't afford it. We can't afford some of the things we have now. How can we afford to put up two separate systems? We can afford to meet the needs of our people because this is a good land, but we can't afford to do things that are not practical. So we must do things together.

• 1445

We have another problem, and you watched it today. Delgamuukw is either going to be negotiated or litigated, and we're stuck. The worst thing that can happen to us in the state our economy is in now is uncertainty, constant battles over our resources, conflict between us as a people—and we have uncertainty.

I want to mention one thing more before I wrap up. I'll be blunt. I'll be honest. I can't understand it. At any rate, it's the section here, and it's this. I have no problem with self-government for all our native people. I have long been an advocate of it. I have no problem with a lot of autonomy on cultural things. But it causes me a lot of concern when, having been in municipal politics, I look at land use things and see that in this treaty it's paragraph 44 and then it's paragraph 45 that give them the right. It says that this right to do these land things for the Nisga'a overrides the power of the other two governments.

I can tell you that it causes me a lot of concern. Surely one of the strongest things we want to do is build equality. This is something that most of us don't understand. What happened? Why did we put what essentially is a Charlottetown accord clause in this treaty? The Charlottetown accord was rejected by the people of Canada. Equality for the people who administer this community, equality for the council in Smithers and the council in Aiyansh, or Grenville, or Canyon City, should be somewhat comparable.

In land matters—and this is always an issue for council and not so much for the Nisga'a because it's away—let's talk about Burns Lake, where you have the native community within the boundaries of the town of Burns Lake. You're going to give one group land powers that are greater than the province's or the federal government's, and say to the other group, who probably are going to have to provide services, and actually are providing services today, that they do not have those rights.

I think it's a mistake. I heard you speak of all the problems you're going to have dealing with what you've heard already. But if you have that many problems, why not just write out the Charlottetown accord in your preamble to this bill?

Thank you.

The Chair: Thank you very much.

For our first round of questioning, Mr. Scott.

Mr. Mike Scott: Thank you, Madam Chair, and thank you, Mr. Davidson. I really appreciate you coming here today and giving us this presentation.

I'd like to say I think your comments with respect to self-government are well made.

• 1450

I notice you started out by talking about the Hutterites. Surely you would agree with me that the Hutterites have no legislation at all to provide them with the self-government tools they've been using for over 100 years in this country to govern their internal matters and their relationships within their Hutterite communities.

You certainly would recognize that in at least 14 areas—actually, there are more—the Nisga'a central government will have legislative authority that supersedes the federal government and the Government of British Columbia, which you've alluded to.

As you correctly point out, that concept was one of the five key features of the Charlottetown Accord, which was voted down by the people of Canada. By the way, it was voted down in British Columbia at about 67%, and it was voted down by aboriginal people in British Columbia at almost the same level.

Looking at the Nisga'a agreement in its entirety and leaving aside the land issues, the resource issues, and so on, which are of concern to some people, would you not characterize the concern in your community as being centred more on the self-government provisions than on anywhere else?

Mr. Jim Davidson: Initially, if you had asked me that same question, what I would have said to you, Mr. Scott, is that it was on taxation. Equality of taxation was the issue for every person I know in this community. The Nisga'a have dealt with that. I pay them real tribute for that, because that was well dealt with.

So now what is the next one? I'm a strong proponent of treaties, and if there's one issue, it's how self-government is dealt with. The biggest mistake we've made for all these years is not throwing out the Indian Act and allowing self-government. We as a people built our concept of government over time, as you did in your Parliament. The idea that you suddenly legislate government for other people doesn't take into account what they've been telling us, which is that they have had government, they have governed themselves, they have done these things all these years. We know that's true, because even in our families we have to have rules we live by, some kind of government.

So I think you're probably right, Mr. Scott, that it's not self-government. It's what it means that may be the issue. I think if we could understand self-government and come to a consensus, it would not be an issue. It's what is meant by self-government that is probably the thing that bothers most of the people.

The Chair: Mr. Scott, you have two more minutes, if you'd like.

Mr. Mike Scott: No, I'll pass on that.

The Chair: Okay. Thank you.

[Translation]

Mr. Bachand.

Mr. Claude Bachand: Thank you, Madam Chair.

Mr. Davidson, I would like to go through a kind of review process with you. You presented the issues that usually annoy certain people when they hear about this kind of treaty.

You spoke of equality, rights, and certainty. I will ask you to react to my comments in a moment. Ever since I began dealing with the aboriginal issue, I have developed in my mind a certain logic to which I would like you to react, specifically as regards equality.

I believe there is a people of Québec, and I believe there are aboriginal peoples. I don't want to make a distinction between a people and a nation, because there's no clear definition of this. Let's say that the words "people" and "nation" are often used.

When it is recognized that a group of individuals forms a people, it is also recognized that they have specific rights, and this can be done in two ways. It can be done through the legislator, who will recognize that there is a Nisga'a people and that this people has rights. It can also be done through courts, including the Supreme Court, which has handed down many decisions lately. It interprets the legislator's intention, finds the grey areas, and says how it sees things. Then the legislator has to adjust.

• 1455

Up to now, in terms of legality, when a people or nation is recognized, its specific rights are recognized, and we determine who can establish these rights.

Now, when two people meet and must reconcile their respective interests, an agreement on a possible partnership must be achieved. This is how I see this agreement today. The Canadian nation has understood that there is a Nisga'a nation, and that it had rights. This has been under negotiation for 100 years, with the last 30 years being more intensive.

I now come to certainty. When we state that we are all equal, and that we recognize that there are peoples with rights, to reconcile these rights, we meet and negotiate, sometimes pressured by the courts, sometimes pressured by individuals or communities. According to me, when we manage to conclude a treaty, we arrive at certainty. We know the Nisga'a will not be able to fish half the salmon of the Nass River. It's written here. We know they will not be able to harvest a certain number of square metres of trees, because it is written in the agreement. We know they will not be able to build fish processing plants before eight years. We know they will have no taxes to pay for the moment, but they will start paying some in eight and twelve years.

I would like you to react to this. According to me, it's the only way to go. If we maintain the status quo, people won't know where they stand, and certain acts will be committed. Some people will take more than half the salmon, and they will say it's their right. You will understand that, to me, it's the perfect marriage: we have arrived at a partnership agreement which created certainty. Are my thoughts and your thoughts reconcilable?

[English]

The Chair: Mr. Davidson, please.

Mr. Jim Davidson: Thank you for the question, Mr. Bachand. Yes, I do agree, but I say it is more than that right. It's the relationship that has to be built so that those rights can be exercised and so that in the exercising of those rights, other people exercise their rights. A right for me only exists if it does not harm you. There are rights that are yours and mine just by virtue of being. Is that not so? There are other rights that have to be negotiated, as was done in the treaty.

I think I heard someone say that he is a farmer. In 4-H they have a saying, which is “learn by doing”. It is absolutely essential that we learn by doing. This is one of the reasons it causes me concern to entrench third government. I'm not talking about the rights. I'm all for the rights of the people. But to entrench rights we don't understand at this stage, which either the battle or the agreeing may well change to who knows what, causes me concern.

We have a rock at the top of the hill, and it can teeter four ways. If you say just push it, God knows what's going to happen. Let's dump it into the gully. Let's get rid of that rock where we control it, rather than just shove it off and hope it goes somewhere.

• 1500

Thank you.

The Chair: Madam Hardy.

Ms. Louise Hardy: The main concern seems to be around self-government. In the Yukon, there are at least eight self-governing first nations right now. Some have decided to do things one way, but always, where there are joint concerns among the communities.... You seem to think that where first nations and non-first nations live in a community there is the possibility of a lot of problems, but there are joint land use planning boards. Also, one community decided how they would share their recreation facilities, with both sides contributing. There is model forest planning that everybody was involved in, in the whole development and process of it.

Some first nations have decided that what they have to focus on is justice issues; they saw that as something really critical. Others decided to focus on their constitutional work, on how they would implement how they would govern themselves. Others have decided that child welfare or addiction was really important.

Everything they have done and decided to do as a group hasn't changed how I live in the Yukon. It hasn't been any infringement on my rights as a Canadian citizen that they in fact might want to recognize their traditional marriages or a combination of traditional and modern ways of governing themselves. I would say that what it has done is to raise their profile so that they are actually seen as equals, as having a say over the land they've inhabited for all these years. It has been a transition. Some may continue, perhaps, to want to educate their children in a different way or to try to revive their language and use it in more ways.

I guess I'm just trying to reassure you that it hasn't been terrible, but I don't think it has been easy for first nations people either to re-establish their own lives.

Mr. Jim Davidson: I have no problem at all with what you say. On cultural things, in fact, you'll notice that I did not mention anything. I said land use. Why would I mention that? Because it is an area that has potential conflict as we expand treaties into the broader area.

Can I explain it to you like this? Our first nations people have been under the Indian Act all these years—as they said this morning, wards of the government. Do you know that the municipalities are wards of the provincial government, creatures of them? They are creatures of government and are controlled by the government. When we passed a zoning bylaw in our town and the provincial government decided they were going to build a building and didn't want to provide parking, they didn't have to provide parking. They could override it.

I'm trying to say that in this, when you give one party the right to override federal law or provincial law on land use issues, and you say to the others no, you're going to do what daddy says...and maybe I could go one more. This is a really terrible issue. Do you remember when the Government of Ontario said to Toronto, you people are going to do this, this way, and we'll have a huge municipality and this is it, so shut up and sit down? This is the thing that is bothering us—not our aboriginal people having rights. That doesn't bother me. I welcome it. I really cheer for it.

But what happens when you have two groups and you say this group is going to be more equal than the other? That's all.

Ms. Louise Hardy: When it comes to the application of laws, conflict is very clearly defined. Provincial law can be in conflict with federal law or territorial law. If a first nation decides that on their land they want a higher standard of environmental concerns and the provincial or federal government says no, they think they could allow this much pollution, and the first nation is saying no, we don't want it...I don't see a problem with the higher standard being applied. They can't lower standards; they have to meet or exceed any federal or provincial law. They can't lower any law. They can only exceed it.

Mr. Jim Davidson: I concede that in those things.

• 1505

Let's just suppose that this is about economics and that the Nisga'a decide the only way they can make this go is to have some economic enclaves within their land base. I am not certain that can happen, that we might not get that, given some land uses, given some of this legislative rue. That may not be. It may be that I'm totally wrong, but I'm saying that for most people this is a concern, especially if it's going to be entrenched in the Constitution. If we've made a mistake, what do we do?

The Chair: Mr. Keddy, you may proceed.

Mr. Gerald Keddy: Thank you, Madam Chair.

I'd like to thank you for appearing. I think you're speaking from your heart, and I respect that.

But with respect, I disagree with a number of issues you've raised. I think you really need to sit down and clearly look at some of the examples in the treaty, and maybe question some of the criticisms of the treaty you've heard and examine them on the basis that those criticisms are there.

Certainly we understand that there's some territory overlap. As a member of Parliament, I'm not trying to say either that this treaty is perfect, but there are a number of things...to begin with, this treaty is not part of the Constitution. That continues to be said by members of Parliament; it's patently false. It is protected by the Constitution. It is not part of the Constitution.

The treaty can be changed without having a constitutional amendment. The treaty can be changed, in some areas, by the Province of British Columbia and the Nisga'a Nation. The treaty can be changed in other areas by the province of B.C., the Nisga'a Nation, and the federal government agreeing on a change. There's a big difference between having rights that are protected by the Constitution and having rights that are part of the Constitution. If rights are part of the Constitution, it takes a constitutional amendment to make a change, with eight provinces agreeing. It will never happen.

I understand your reference to Charlottetown, but you should also understand that we have sections of this country—provinces, territories with municipalities, towns, and cities—with bylaws that are not equal for all Canadians, that affect only the people living within them.

In Nova Scotia, we have what is called the Canada—Nova Scotia Offshore Accord. In Newfoundland, they have the Canada—Newfoundland Atlantic Accord. The accord was signed to give Nova Scotia jurisdiction over undersea rights to offshore gas and oil.

B.C. doesn't have the same process. New Brunswick doesn't have the same process. P.E.I. doesn't have the same process. At this stage of the game, the federal government has complete control over their offshore.

I have another point I want to make. Again, this is an exchange of ideas, an exchange of opinions. I'm trying to say there are some areas where I think you're definitely wrong, and there are some areas where I may be definitely wrong. You say, we believe in self-government but we're not willing to do it. Somewhere along the line we have to say we're going to do this. You can't believe in self-government on the one hand but never be willing to go forward and try it on the other.

Yes, there should be protection for all parties. We want to make rights as equal as possible for all Canadians, understanding that in the areas where jurisdictions exceed it...for instance, the Nisga'a will have rights that would be quasi-provincial rights, rights of adoption. Federal rights would be rights of citizenship.

A statement has been made about this treaty that you have taxation without representation. That's not there. You addressed that. That was an issue and it's certainly an issue with first nations in Nova Scotia. There's a huge resentment among the non-first nations community about the tax exemption. It would be a mistake to try to ignore that; it's a fact amongst non-first nations society. However, that tax exemption is there for a reason. We can address that and we can understand it, and then we can move forward.

• 1510

Sooner or later we have to understand that, within reason, as my colleague Ms. Hardy said earlier, no laws that the Nisga'a pass can be less stringent than the provincial counterparts and no laws can be less stringent than the federal counterparts. So we're not going to have an environmental process here, for instance, a law governing the environment, that will open the environment up for pollution. It certainly can't be any less stringent and apply any less than the laws of the province of British Columbia or the laws of Canada.

So there is a built-in protection within the treaty process, and maybe beyond that we're going to have to trust ourselves and the Nisga'a Nation and other first nations that we will be able to live with this treaty. The thing to remember at the end of the process is that the Charter of Rights and Freedoms applies and the Constitution of Canada applies, to give all Canadian citizens protection, and they do apply.

I'm sorry I rambled on there.

The Chair: You actually just finished your time, but if our witness would like to comment on that....

Mr. Jim Davidson: I really have nothing to say on that issue.

The Chair: Okay. Thank you.

Our final questioner will be Mr. Finlay.

Mr. John Finlay: Thank you, Madam Chair.

Mayor, it has been very good to have you here. We haven't seen much of your city; we've seen a lot of this nice community centre, but if we get out of here in time, we may see a little of it before dark. We certainly put a lot of effort into getting here, so I think we should at least walk around and enjoy it.

Today we have been blessed with a good audience, a lot of audience, for what we're trying to do.

I was going to say pretty much what Mr. Keddy has said and refer to those paragraphs of the agreement. There's another line I have underlined here in paragraph 9, which follows paragraph 8. It says:

8. This Agreement does not alter the Constitution of Canada, including:

a. the distribution of powers between Canada and British Columbia;

It says:

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

I understand that's put in there just to make it perfectly clear to everybody that the Nisga'a are not going to create a dictatorship or whatever.

Then paragraph 13 says:

13. Federal and provincial laws apply to the Nisga'a Nation, Nisga'a Villages, Nisga'a Institutions, Nisga'a Corporations, Nisga'a citizens, Nisga'a Lands, and Nisga'a Fee Simple Lands, but:

a. in the event of an inconsistency or conflict between this Agreement and the provisions of any federal or provincial law, this Agreement will prevail to the extent of the inconsistency or conflict;

I understand that to mean these inconsistencies or conflicts can themselves not be in conflict with the Constitution, or with the laws of British Columbia, or with the laws of Canada, or with the laws of free and democratic governments. Like Mr. Keddy, I think we simply have to give the Nisga'a leadership and the Nisga'a Nation the chance to make some laws that pertain to those things that are very important to them. They also are listed, and they have to do with culture, language, land, and so on.

But I would remind us that under paragraph 59, in chapter 11, “Public Order, Peace, and Safety” are the other way around:

59. Nisga'a Lisims Government may make laws in respect of the regulation, control, or prohibition of any actions, activities, or undertakings on Nisga'a Lands, or on submerged lands within Nisga'a Lands, other than actions, activities, or undertakings on submerged lands that are authorized by the Crown, that constitute, or may constitute, a nuisance, a trespass, a danger to public health, or a threat to public order, peace or safety.

Mr. Mayor, I think we're going to have to allow the Nisga'a to do what all the rest of us have done and you and your municipality have done. Probably you haven't made many mistakes, but maybe you've made a few and bylaws have had to be reworked or changed or rescinded, or what have you. Maybe we'll have to have a few of those things too as the Nisga'a go through this wonderful exercise of having some self-government after 500 years of being manipulated under the Indian Act and by the governments of this country.

Thank you, Madam Chair.

The Chair: Would you like to comment?

Mr. Jim Davidson: No.

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The Chair: That was our last witness. We're out of time right now. I want to thank you as a witness. I think it's probably somewhat daunting to appear as an individual before a standing committee. I appreciate those courageous individuals who come forward to give us their thoughts. I think we all learn from all of these exchanges, whether they're with groups or individuals. We certainly appreciate your being here.

Before we close for the day, I'd also like to thank all of those from the public who joined us for the day.

Mr. David Iftody: I have a point of order, Madam Chairman.

The Chair: Yes.

Mr. David Iftody: I wonder if we could give a round of applause to those who have been providing us with such a good lunch and food for the day. Thank you very much.

Some hon. members: Hear, hear!

The Chair: The meeting is adjourned until tomorrow.