EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, November 9, 1995

.1403

[English]

The Chairman: We are gathered to study Bill C-107, an act respecting the establishment of the British Columbia Treaty Commission.

Our first witness by teleconference is from the B.C. Treaty Commission, Alec C. Robertson, chief commissioner.

My name is Ray Bonin. I'm the chairman of the committee. From the Reform Party we have Marg Bridgman, and from the Liberal Party we have Mr. John Finlay.

We have an hour for your presentation and for questions. Ideally, it will be a 20-minute presentation. If you go beyond that there will be less time for questions. If you can't put everything into 20 minutes, you can sneak it into your answers. You'll find that we're very flexible.

Without further ado, we invite you to start your presentation.

Mr. Alec C. Robertson (Chief Commissioner, British Columbia Treaty Commission): Thank you, Mr. Chairman and hon. members, for inviting me to speak to you today.

I've seen the Hansard. You've already been well briefed, so I will try to confine my remarks to a lot less than the 20 minutes that are required. I thought I would touch on our mandate and role, our progress to date, why we need the legislation, and what we see required for the future.

.1405

As I think you are aware, there are three principals in this process: Canada, British Columbia, and the First Nations Summit. We're the creation of the three principals. We have, I guess, in a simplistic sense, three roles.

In one we are keeper of the process, in which we are required to ensure that each of the negotiating parties complies with the criteria required for the six-stage process. In reality it's probably simpler to think of that as at most three stages, the first of which is when the parties get themselves ready to negotiate, the second when they meet and negotiate a menu of what they are going to build a treaty about, and the third when they proceed to negotiate their treaty.

In that role we have to make sure that when each of the parties go through their readiness stage they have met our criteria and specifically that they have appointed their negotiators, consulted with their communities, and have their mandate. Then we call the table, set them to work to settle their framework agreement, and get on into negotiations.

In another role we allocate the support funding provided by the governments to first nations to ensure they are equipped to conduct themselves at the table on as near as possible a level playing field with the two other governments. That is a process frankly that occupies a great deal of our time.

The third role, which is perhaps the most important role of all, is our role in facilitating the negotiations themselves. As more and more first nations move into the negotiation stages of our process, we expect that to become a more and more demanding part of our function. In that role we move at the request of the parties to facilitate where they are having difficulties. We do that and have done it either by moving in ourselves and chairing a meeting or by holding discussions with the parties to try to negotiate a solution.

If it's going to be a continuing matter...for example, we had a commissioner chairing one of the very large tables on Vancouver Island for a while, until we moved in or arranged for someone from outside to come in and permanently chair the table. That is working quite well.

In terms of our progress to date - you may have already heard the numbers, but I will provide them to you - there are now 47 first nations that have come into the process. They represent about 70% of the aboriginal population of British Columbia. Of that number, about 26 of those first nations are still going through the readiness phase and 21 of them are out of the readiness phase; of those, 17 of them are negotiating framework agreements, which is the menu of matters that are going to be discussed in substantive negotiations. Four of the first nations are into substantive negotiations of their treaty.

.1410

In terms of our overall view of the matter, we would say that the process is working well. First nations by and large have been moving into and through the process at a rate faster than anticipated. Some of the criticism about the process has been productive. Certainly community and third-party consultation, which was a concern to us a year ago, has now been addressed by the governments and is at a much more intensive level than it was before. Virtually most, if not all, of the first nations coming out of readiness...the tables are agreeing to openness protocols, so that there will be a good deal of public access to the state of negotiations.

The reports we are hearing from our tables are that the meetings occurring in the fourth stage of actual substantive negotiations are productive meetings, that the parties feel issues are being addressed and resolved. This holds out some reasonable prospect that we are going to have treaties developed within the time frameworks planned for those stages. For example, in two or three of the stage four negotiations, they have agreed on time schedules with the other parties that would see a treaty produced within two years. If this kind of progress is maintained, that may well be an attainable target.

In terms of the legislation you're addressing, it would hopefully resolve three concerns for us.

The first is that right now the commission consists of five commissioners. Each of us is personally responsible under all the agreements we have been entered into; if anyone is going to sue the commission, they sue us personally. Although we have indemnity agreements to cover it off, I think it's a burden to ask commissioners to assume that kind of potential liability.

The other concern we have is that because we are not a legal entity, we are, to use a metaphor, a paper house or construct that has been put together by a series of legal agreements. Every time a commissioner leaves there is a gaping hole in this paper house, which has to be papered over by more legal agreements. Since the first commissioners were appointed in April 1993 we have had a 100% turnover; some five commissioners have left and been replaced. Although those paper agreements can all be put in place, it represents a substantial burden and an expense to the treaty commission, which frankly disappears once it becomes a legal entity.

The last of our concerns is more symbolic, in that the legislation symbolizes the commitment of Canada to the process. Because the provincial legislation is tied to the federal legislation, it also implements the commitment of British Columbia to the process.

In terms of looking forward, as I say, we see the process working reasonably well. We are hopeful that if it stays on course and if treaties are produced and ratified, that will bring in the remaining first nations who are outside. That's speculative, of course; it may not occur, but we think there are others who will come in.

.1415

We see a continuing need for public education, which we hope to begin to address ourselves. We are a small organization with not a large budget, but we are trying to reorganize ourselves so that we can do more in the area of public education. We sense that the public wants information about how the process is working. Over the next year we hope to address it.

I think that about sums up our immediate view of how the process is working and how we see the commissioners. I'd be happy to answer any of your questions.

The Chairman: Thank you very much, Mr. Robertson. I'd like to mention that as you began your presentation we were joined by members from the government side, Mr. Harper and Mr. Bertrand.

I will open up to questions. We can do this very casually. We'll jump from side to side, as you raise your hands.

Ms Bridgman, please start.

Ms Bridgman (Surrey North): Thank you, Mr. Chairman.

Thank you very much for your presentation. My name is Margaret Bridgman, and I'm the Reform Party member here. I have a couple of concerns.

First of all, do you think we'll get a second round at this?

The Chairman: I presume you'll have all the time you need.

Ms Bridgman: Okay.

The first two concerns I would like to address, then, would be in relation to preparing and assisting the parties for negotiation. It's my understanding that the commission is not actually involved in the negotiation process. It's a matter of preparing the parties for readiness to participate in that process. I'm wondering if the commission advises the parties that they're ready, or permits the parties. It's a sense of authority.

Can they negotiate regardless of whether or not they're ready, based upon the advice of the commission, or can they negotiate only when the commission says they're ready? That would be one question.

The other one is in relation to the summit and the composition of the summit. I understand 47 bands are involved at present. Are the persons on the summit constant or do they vary according to the bands that would be in the negotiating process?

Mr. Robertson: Let's see if I can address each of those. Essentially, in terms of the readiness criteria, under the process we administer each of the parties is expected, on their own, to meet the readiness criteria. When they feel they have met it, they submit to us their documentation to show they have done the things they are required to do.

We review that documentation. There are no negotiations until we have declared each of the parties to have met the readiness requirements. When all three have met those requirements, we then declare the table ready to commence the negotiation of a framework agreement.

So essentially, I think the answer is that there are no negotiations until each of the parties has been declared by us to have met the readiness requirements.

With respect to your second question, the summit, of course, is a group representing all first nations in the process. I think you will be hearing from members of the summit, and in some respects I'd rather they answer than me, but the summit is generally represented in discussions by a task group that consists of Grand Chief Ed John, Chief Joe Mathias, and others. I'm not sure of the entire membership, but I believe the representatives of the summit have remained constant for the last period.

Does that answer your question?

Ms Bridgman: Yes, but it brings another one. I'll come back to it on my second turn.

The Chairman: Anyone from the government side?

.1420

Mr. Harper (Churchill): My name is Elijah Harper, and I sit on the government side, as you can see. I'm very interested in this process.

You're going to be assisting the parties in terms of obtaining dispute resolution services. What problems do you envision in this process? What kind of disputes or kinds of problems will you be addressing? What problems do you envision you would have to work on with the parties? Have the parties indicated what kind of positions they're bargaining from, whether the province assumes or has the total province as crown land, or whether the first nations say the land has never been ceded in that territory in the province of British Columbia? What positions have been taken in that regard? Will it have an impact in terms of the whole process? Can you provide some information in that regard?

Mr. Robertson: We're heading into a very interesting area, as you know. I think the positions you've described have already been taken, by and large.

As you're aware, there are very few first nations that are now in substantive negotiations where those differing views of the world are being tested. It's to be hoped, notwithstanding that there may be those differing views, that solutions will be arrived at.

The test of that will probably emerge from a negotiation that is not under our process, and that is the negotiation by the Nishga nation. If it reaches treaty status in the near future, as is hoped, then there would appear to be a formula for getting around that very division of views to which you have made reference.

The other types of areas we're being drawn into in our process - and I might say, as of yet we haven't been drawn into any disputes regarding that differing view of who owns the land, or who ceded it - are involving, in some areas, the overlapped traditional territories of first nations. While that is primarily the responsibility of the first nations to address, we are aware that there are areas in which it may become an impediment in negotiations. We expect that we're probably going to get involved sooner rather than later.

We have seen that there have been procedural problems that arise at tables because of some differing expectations of the parties. So far they've been relatively minor, and we've been able to resolve them.

I don't think I can really give you a comprehensive answer at this stage of the process, largely because I really think the real issues are going to emerge as we get into agreement in principle. Then we're going to find out where the deep divisions are and how we're going to be able to try to address them.

I might say that one of our problems is going to be to find mediators and facilitators who know enough about the differing cultures and the backgrounds to be able to be helpful in arriving at solutions.

The Chairman: Thank you for a good long answer, but we'll have to try to stick to really what the job is. You might find a link, though, with your question. It's a bit borderline as to whether it's in order.

If you have another question, continue.

Mr. Harper: Yes, because I find the commission is entering a new era in terms of what you just said. Some of the issues are going to be very sensitive.

.1425

We just had a report given to us, which deals with extinguishment uncertainty. It's called A New Partnership, by Al Hamilton. I don't know whether he had a chance to review that report in terms of its recommendation that the federal government abandon its present policy of requiring the bands to extinguish their title to land and resources. If that policy were to be changed, would that be helpful? If the federal government totally removed the extinguishment policy and said in its place that the bands no longer are required to extinguish title to a land, would that be helpful? I know you're going to be involved in the dispute mechanism, so how would you approach that?

Mr. Robertson: I think I'm being drawn into areas I prefer to leave until they come to us formally. I've read the report. It's very interesting. It's going to be interesting to see what position the negotiators take, because as I understand it, that report is still being digested. We would watch it with interest, but I don't think we have a position to take about the report itself.

The Chairman: We accept that, Mr. Robertson.

Mr. Finlay.

Mr. Finlay (Oxford): Thank you, Mr. Chairman.

I'm John Finlay, Mr. Robertson, from Oxford.

You mentioned the 47 first nations, most of which are still at the preparation stage under the treaty commission. You said they represent something like over 70% of the first nations. Have you any comment about the other 20% or 25%? How many bands are involved and why are they not presently involved?

Mr. Robertson: There are others, I think, better qualified than I to inform you about that subject.

Generally, as you're probably aware, there are two major groups in British Columbia representing the aboriginal first nations. The group involved in the treaty process is the First Nations Summit. The other group, which is outside this process, is the Union of British Columbia Indian Chiefs. I'm not sufficiently knowledgeable to tell you what percentage of the remaining approximately 30% they represent. We believe there are other first nations out there who are going to come into this process, and I would hesitate to guess what percentage the Union of British Columbia Indian Chiefs represents.

Their view of the suitability of the process is different from that of the First Nations Summit, and probably you should direct that question to the summit. They might be able to give you a better answer.

The Chairman: Ms Bridgman.

Ms Bridgman: Thank you, Mr. Chairman.

I have a couple of questions, again going back to this readiness of the parties and the negotiating requirements. First of all, I'd like to know how those requirements are actually established. Do the principals involved in this agreement establish those requirements or does the commission establish them?

I think Mr. Harper's point about using the Hamilton report is an example. When other kinds of approaches come onto the scene, how do they get incorporated into the commission's role, whether or not to accept or what? I'm having some difficulties there as to where this direction is coming from.

Mr. Robertson: The first part of your question is answered by pointing out that the British Columbia Treaty Commission agreement, which was signed by the three principals, sets out the criteria we apply in determining whether or not the parties have achieved readiness. But you must bear in mind that the British Columbia Treaty Commission agreement arose out of the task force report that was made by the task force study of land claims. I believe it was dated in 1991. That report was undertaken by representatives of the first nations, Canada, and British Columbia.

.1430

It set out a series of some 19 recommendations, with a lot of supporting text, as to how the process should be managed. Our agreement is a summary of the criteria for those, but we are instructed to look to the task force study in determining readiness. So our criteria are essentially laid down for us by the British Columbia Treaty Commission agreement and the task force study behind it.

We don't ourselves set the criteria, although when there is lack of clarity we will apply our own policies. But by and large all of our criteria are set for us.

When something comes along such as the Hamilton study, we have to bear in mind that we have no role to play as negotiators. We are not to take sides, we are to be the true neutral body. Something like the Hamilton study is something the negotiators are going to be dealing with at the table, because it represents an attempt to reconcile two opposing views on how to resolve land claims issues. We hope they are successful in finding a way.

If a table broke down because of that, we would probably look for a professional facilitator to try to help the parties arrive at some kind of a solution.

Ms Bridgman: This leads me to another point in relation to the criteria that are coming from the task force report.

In Bill C-107 there is an amending clause, clause 22, which is verbatim almost from the agreement. In there it says that the principals can amend the agreement. We can't amend it, but the principals can.

You have just stated that the principals created the criteria, so this can be changed through amendments. Does the commission have any influence on these amendments? Can it recommend amendments as we progress? This looks like it is going to be an ongoing process.

I am concerned about the amendment process. Can we chop and change this quite radically? What sort of control does the commission have for continuity?

Mr. Robertson: Controls we don't have, but this entire process is unique in the sense that it represents a collaborative effort by the summit of the First Nations, British Columbia, and Canada. Those three principals must act in concert for there to be changes to the process.

Virtually that agreement can be changed by the principals, and I believe it has provision in it for being reviewed in a period of time. They, acting together, could introduce changes. In terms of our role based on our experience to date, I think the principals want to hear from us as to how we think things are working and, if things need to be improved, how we think they could be improved.

I think they would look to us as a source of information about the process and would consult with us as to what might be useful if change was being considered. But we don't have a direct role, or a veto, or any say in what the principals do. They make those decisions themselves.

Ms Bridgman: Thank you.

.1435

The Chairman: Mr. Harper.

Mr. Harper: My question is about obtaining the dispute resolution services. What does that entail? Is it what kind of services are being made available or is it the mechanisms that are in place? Could you explain how that would work?

Mr. Robertson: To date, largely we ourselves have been providing the resolution services, because for each first nation in the process we have assigned one of the commissioners to sort of monitor their progress and attend their tables, as necessary. We also have analysts in the commission who monitor the tables. It's our job to know what's happening before the problems emerge, if we can.

So where we have seen difficulties arising, generally there has been a commissioner available who can talk to all three of the parties and try to get things resolved. As you well know, many times these things happen because somebody takes a fixed position over someone, and very quickly people get emotional. Things may unravel a bit. But if there is someone neutral who is listening to all three, it tends to get itself resolved. That's worked on an ad hoc basis up until now, but we really see that the commission is too small to try to handle that personally for the number of first nations involved.

So we're busy at the moment trying to put together a list of people who could provide mediation services for first nations so that where there's a difficulty we can suggest to them people they can use for that purpose. It's really using mediation, which seems to be the tool of preference for the kinds of difficulties we see.

The other problem we see - and we've already had experience with this - is that in some of the first nations their method of negotiation, because of their governmental structure, involves having several negotiators representing either different houses or whatever is the style. That makes for rather large tables. There is a desire to have a neutral chair. We've provided the neutral chair on some occasions, but we're going to go out and get others to perform that service. It makes it work.

Those are the kinds of things we're looking at. I'm sure as we go on we're going to get into some areas where there are really deep divisions and difficult work ahead of us, but so far it hasn't emerged.

Mr. Harper: I want to go further in this conversation and to be more specific in terms of the interim measures that may be required to address forestry or developments taking place right now that need to take place.

Now, all these parties want their rights to be addressed, whether it be private or business, provincial or federal government, or first nations. Suppose in a first nations territory the treaty has not been completed. What measures are being taken, or what advice are you providing to the parties, in terms of jurisdiction, whether it be co-management or harvesting of these resources?

I know life has to continue while this process is taking place, so is that an issue or a problem right now?

Mr. Robertson: Interim measures has been an issue that has arisen from time to time. The task force report made it clear that interim measures in many circumstances would be essential to prevent the process from being undermined. It was fairly specific as to the range of interim measures that should be both considered and available at any stage of the process.

.1440

On some occasions we have been brought into the process because of a particular first nation's concern that it was having difficulty getting interim measures addressed and the fear that some territory...or a cutting permit, which has been the usual example, would be issued within an area that was within their traditional territory and would be fundamental to their negotiations.

The commission has been considering its position on these and has been of the view that if we're satisfied that the circumstances are such that somebody looking at this objectively would say this is an appropriate case for an interim measure, then we will get involved to the extent of consulting with the parties and urging them to sit down and negotiate appropriate interim measures.

This hasn't arisen that frequently, but when it has arisen we've had some success in getting it addressed. It seems to be working.

We hear a lot of complaints that there aren't sufficient interim measures, but all I can say at the moment is that the ones that have been brought to our attention, where we've been consulted, appear to be being addressed.

The Chairman: Mr. Finlay.

Mr. Finlay: I have a couple of short questions, Mr. Commissioner. If we passed Bill C-107, that would establish the commission, as you told us in your opening remarks, as a legal agency, I take it, and would get around this paper house and legal documents every time there's a change or a commissioner changes. Am I right in that?

Mr. Robertson: That's right.

Mr. Finlay: I have the feeling, listening to the number of things the commission is attempting.... Is five commissioners absolutely set in this legislation, or is there an opportunity to get more, if needed?

Mr. Robertson: To respond to your first question, making us into a legal entity means we stop being the British Columbia treaty commissioners and become truly the British Columbia Treaty Commission. If there are changes of personnel, the commission carries on. There is far less disruption in our lives if there are changes of commissioners, and a better basis.

In terms of the number, frankly we haven't addressed it. There is an advantage to the number being roughly this. We're able to stay in relatively close touch. We meet at least two times a month to deal with decisions that come up. To some extent we like being a relatively small organization and dealing on a hands-on basis.

While I'm a full-time commissioner, and the others are said to be part-time commissioners, it requires more than half their time. It's more like two-thirds to three-quarters of their time.

I'm not sure where I'm leading to, but at the moment five seems to be working quite well. If we felt there was a need for more, I think we would raise it with the principals. But that hasn't been the feeling.

I guess that's about the best I can do.

Mr. Finlay: But it would appear that as things move further through the seven stages, your fellow commissioners aren't going to be working two-thirds to three-quarters; they're probably going to be working full time as well.

Mr. Robertson: That may be so.

.1445

Mr. Finlay: You mentioned right at the beginning that one of the commission's jobs is to, I think you said, arrange for funding for the first nations group primarily in order to level the playing field. What kind of budget does the commission have for that? Do you have limits on it? Can you say something about that?

The Chairman: Very briefly, please.

Mr. Robertson: Very briefly, then, for this fiscal year we are allocating a budget of $23.8 million. Of that budget, 80% of it is loan funding and 20% of it is contribution. There are limits to the amount that can be allocated to each first nation for a particular stage. Most first nations are getting through under the limits.

That funding is provided by the two governments. The loan funding is provided by Canada, and the contribution funding is shared by Canada and British Columbia.

The Chairman: Thank you.

Now we'll go to a two-minute round, if needed.

Ms Bridgman.

Ms Bridgman: I have a brief question in relation to time. It's my understanding that one of the principal reasons for going this way with the commission was to try to speed up the process of negotiating. We don't have a really great track record on this. I hear of people who have been negotiating for 20 years. For example, the Yukon bunch said that.

My question to you is that through these seven steps, do you see this ``20 years'' being reduced substantially? Is there somewhere some kind of guideline as to what would be considered a reasonable amount of time for a process to work its way through the seven steps instead of maybe coming forward to the front burner and then back to the back burner, that type of thing? Is there some type of guideline where once you get started, you're going to work your way through in a specific period of time?

Mr. Robertson: The only guidelines are the estimates that were made when this process was set up. They were basically just that. ``Guesstimates'' would probably be the more accurate word.

For the support funding program, it was based on a model that assumed that from the time of entry into the process to the signing off of a treaty it would be a period of approximately five years. That of course is a fairly optimistic program given the pattern in the past. However, this process is unique in the sense that it is one that was designed by all three of the parties rather than mandated by one. It does have the commission as a neutral body to try to keep the process moving. Time will tell, of course, whether that is going to work.

I may be an incurable optimist, but I think the feeling in the commission is that if everyone adheres to the criteria and we're able to continue with it, it's going to produce treaties in a much earlier period than was experienced under the comprehensive claims process, which was not a success, frankly.

The difficulty - and let's be frank about it - is that it's not all smooth sailing. One of the difficulties is going to be whether or not, with the process open to all first nations, no matter how organized - which means it could rise from 47 to more - there will be sufficient negotiators available to keep all the tables moving. That's a problem we should work on if we're making good progress.

.1450

The Chairman: Mr. Robertson, I want to thank you for your input. The work you do is very important and it's taken very seriously. It may be a model for others across the country, so we're keeping a close watch on what you are doing because we admire what you're doing. I want to thank you very much for your participation today.

Mr. Robertson: Thank you very much, Mr. Chairman, and to the members. I am happy to appear.

The Chairman: We'll suspend until we're ready for the next group.

.1500

The Chairman: Thank you, and welcome. In this submission we'll be hearing from the B.C. Summit Chiefs: Chief Joe Mathias, Grand Chief Edward John, and Gerald Amos.

We have been told that there may be observers. We will name them: Chief Sophie Pierre, First Nations Summit co-chair; Danny Watts, First Nations Summit co-chair; Karen Isaac, First Nations Summit communications coordinator; Kathryn Teneese, First Nations Summit protocol coordinator; Marilyn Teneese, executive assistant; and Nancy Morgan, First Nations Summit legal counsel.

We have about half an hour for your presentation. Could you indicate to us, without binding yourselves to this, what your plans are? Do the three of you have a presentation? Could you give us an idea of what to expect within this half hour?

Grand Chief Edward John (Task Group Member, First Nations Summit): We have a written presentation we'll read into the record. We'd give you a copy of our presentation but obviously it's not possible. We can send that along as part of the information to the committee.

The Chairman: We would appreciate that.

Grand Chief John: First I think we should introduce ourselves so that you know who we are. I am Edward John, a member of Tl'azt'en Nation and also a member of the summit task group executive committee with the First Nations Summit.

Chief Joe Mathias (Task Group Member, First Nations Summit): I am Chief Joe Mathias, Squamish Nation, First Nations Summit task group.

Mr. Gerald Amos (Task Group Member, First Nations Summit): I am Gerald Amos, with the Haida Nation, also with the First Nations Summit.

The Chairman: Thank you very much.

Please proceed with your presentation of preferably half an hour maximum, so that we will have another 35 minutes for questions.

Grand Chief John: We need to introduce our chairperson as well.

Chief Sophie Pierre (Co-chair, First Nations Summit): My name is Sophie Pierre, one of the co-chairs for the First Nations Summit.

The Chairman: Welcome.

Grand Chief John: The presentation we have is very short. It's three pages. We may add a few comments to the process.

The documentation we have, for your information, is the task force report of June 28, 1991. The genesis, or the basis, of the treaty commission is founded in that report of the federal and provincial governments and ourselves, given a period of six months to find a way in which to deal with the question of how to resolve the land question in British Columbia.

The report of the British Columbia Claims Task Force provides some guidance as to how the process should develop. One of the recommendations in the report is of course the formation of the B.C. Treaty Commission. We also have the agreement between the First Nations Summit, Canada and British Columbia of September 21, 1992.

As well, we have a copy of the resolution passed by the First Nations Summit to establish the B.C. Treaty Commission. It will mirror the federal and provincial legislation.

In our package we also have a copy of the provincial legislation passed but not proclaimed. For your information, it will be part of the package sent on to your committee.

.1505

The First Nations Summit represents the first nations in British Columbia that have agreed to participate in the treaty process. To date close to 50 groups, representing over 70% of the first nations' population, have submitted statements of intent to negotiate treaties with Canada and British Columbia. Under the process facilitated by the B.C. Treaty Commission, the summit has for the past two years strongly encouraged the federal government to pass legislation mirroring the summit resolution and the British Columbia legislation, which were passed in 1993. The summit therefore welcomes notice of the federal government's intention to pass its mirroring legislation.

The passing of Bill C-107, the proposed British Columbia Treaty Commission Act, will fulfil the commitment made by the Prime Minister of Canada at the historic signing of the B.C. Treaty Commission agreement on September 21, 1992. On that day Canada, British Columbia, and the summit, together called the principals, represented by the Prime Minister, the premier, and the summit leaders, committed to establishing the B.C. Treaty Commission by mirroring federal and provincial legislation and by summit resolution.

Pending the establishment of the commission by legislation, the three principals agreed to provide the five commissioners with identical terms of reference through federal and provincial Orders in Council and summit resolutions. However, it has always been the position of the summit that the commitments made in the Treaty Commission agreement would not be fully implemented until the commission was established by the legislation, federally, provincially, and by summit resolution.

Since September 21, 1992, a number of important steps have been taken in the treaty process. On April 15, 1993, the first five commissioners were appointed by federal and provincial Orders in Council and summit resolutions. On May 10, 1993, the summit passed its mirror resolution establishing the commission. On May 26 British Columbia passed its mirror legislation establishing the commission, which we understand will come into force by regulation. On December 15 the commissioners opened their doors and began accepting first nations' statements of intent to negotiate treaties. I understand that you've had an opportunity to speak to the chief commissioner about this.

The idea of establishing the commission had its origins in the June 1991 report of the B.C. Claims Task Force. Having agreed that a treaty negotiation process was absolutely necessary to address the outstanding land questions in British Columbia, the first nations, Canada, and B.C. established a task force to make recommendations on the form and content of such a process. The recommendations made in the task force report were unanimously accepted by the summit, Canada, and British Columbia in 1991.

The recommendation to establish a commission to facilitate the process of negotiations was one of the most important of the task force's recommendations. The task force went on to describe the commission as consisting of a jointly nominated chief commissioner and four commissioners, two nominated by the summit, one by Canada, and one by British Columbia.

Although the commission was intended to play a critical role in determining the readiness of the parties to begin negotiations, the actual negotiations were to be solely in the hands of the parties negotiating the treaty: the first nations, Canada, and British Columbia. The task force report made it clear that the commission was not to be directly involved in negotiations. However, at the invitation of the parties, the commission would be available to assist them in resolving disputes or to provide services, such as an independent chairperson.

In this matter the principals hoped that the five-person commission would become the keeper of the process. To date the commissioners have, as hoped, significantly contributed to keeping individual negotiations and the overall process on track.

The reasons for the legislation, as we see them, are that while the commissioners have been able to carry out their terms of reference under the mirror Orders in Council and resolutions, the summit has maintained that it would be preferable to establish the commission by legislation and resolution. The summit believes legislation would provide a solid basis for the commission to provide it with the strong and secure mandate it requires to carry out its important functions.

The establishment of the commission, through legislation and resolution, will serve to confirm the principals' commitment to the commission's continued existence and their respect for its impartiality and independence.

.1510

Through the joint operation of the mirror legislation and resolution the commission will become a single legal entity. This will significantly assist the commission in its many dealings with the principals and first nations.

Since the appointment of the commissioners in 1993 an inordinate amount of the commissioners' and principals' time has been taken up in amending and re-amending agreements to provide for new commissioners or for an acting chief commissioner. Once the commission becomes a legal entity, less time will be taken up with burdensome paperwork, allowing the commission to focus on the critical challenges it faces.

As well, under the current Orders in Council and resolution mechanisms, the chief commissioner and the other commissioners are required to sign agreements such as their lease and staff contracts in their own names. Even with the indemnities from Canada and British Columbia, this is an inappropriate and unfair burden to place on the commissioners' shoulders.

At each of the significant milestones in the treaty process, it is important for all of us to consider the importance of the treaty process. The treaty process is in our view the most effective mechanism for addressing first nations' legitimate and pressing issues. Canadian courts have repeatedly held that first nations continue to have aboriginal rights and that these rights are protected by section 35 of the Canadian Constitution.

The courts have also urged the parties to resolve the outstanding land question in British Columbia through negotiations. However, for the treaty process to meet the expectation of resolving the outstanding land question, the words of the task force report must be heeded. I quote:

Whatever the issues may be, it is crystal clear that any new relationship must be achieved through voluntary negotiations, fairly conducted, in which the First Nations, Canada, and British Columbia are equal participants. The negotiations will conclude with modern-day treaties. The treaties must be fair and honourable.

That's the end of the quotation from the task force report.

In order to achieve fair and honourable treaties, the treaty process itself must be fair and honourable. The commission has an important role to play in ensuring that the principles underlying the establishment of the treaty process are upheld. Consequently, the establishment of the commission by legislation and resolution will confirm Canada's, British Columbia's, and the summit's shared commitment to its independent role as keeper of the process.

This legislation operates jointly with British Columbia's legislation and the summit's resolution, both of which have already been passed but are not yet enforced. Any amendments are therefore certain to result in substantial delays and keep all of us from focusing on the many other critical issues we face. We therefore urge the Parliament of Canada to support the enactment of this piece of legislation in its current form.

That is the end of the written submission. We have it and will make sure that your committee receives a copy of it.

The Chairman: Thank you very much. We will allow a few minutes each if your colleagues would like to make comments, or if you wish we can proceed to questions. We'll leave it with you.

Grand Chief John: We'll go directly to questions.

The Chairman: Thank you very much.

Ms Bridgman.

Ms Bridgman: Thank you very much for coming today to make this presentation to us.

I have a couple of concerns. One would be a statement you made in which a band or a first nation comes to the commission with its statement of intent to participate. I think I would like a little clarification as to what the statement of intent would actually mean. Is this a commitment to participate? If so, is the process such within the commission that even though you commit today, a year or so down the line you can decide not to participate and withdraw, or is the commitment an agreement to see the process through the seven steps?

Chief Mathias: We view the statement of intent as the initiative of the first nation to begin the process of establishing negotiations. The statement of intent is merely a trigger. It advises and gives notice to the Government of Canada and it gives notice to the Province of British Columbia that this particular first nation or group of first nations has the intention of beginning the process of negotiations.

.1515

As we all know, at any point in time of the negotiations, either party can withdraw its position and not continue negotiations. In other words, the negotiations could be suspended or broken off.

We take the statement of intent merely as a triggering process. It just gives notice to both levels of government that the first nation has the intention to begin the process of negotiations. It's a trigger mechanism.

As well, it brings it to the attention of the treaty commission so it can begin gathering the necessary information for all parties to come together. After the statement of intent is tabled with the treaty commission, notice is given to the two governments. The treaty commission is then obliged to coordinate a meeting by discussing the appropriate time and place for an initial meeting to take place.

Once the meeting has taken place - once it has been called and chaired by a commissioner or chief commissioner - the parties then begin to ask: Where do we go from here? What's our intention? How do we organize ourselves in scheduling meetings? What requirements do we have to meet in order to reach readiness? Do we have the resources to begin the process? It allows all parties to start talking about the process, what's needed in the process and how to get on with the job.

Also, once a statement of intent is given to the treaty commission, it requires all parties to respond within a period of 45 days so that there's no long, undue, inappropriate time span before a reaction from governments to the first nation. That initial meeting may only be half a day or less. It just gets the parties together.

Ms Bridgman: As you know, we're looking at our Bill C-107, which is the federal commitment to the establishment of the B.C. commission. In the bill itself, which is almost verbatim from the agreement, there is a moneys clause in paragraph 5(3)(b). At this particular time I have some concerns as to controls on that. It says:

the Commission shall...allocate funds that have been provided to enable first nations to participate in negotiations, in accordance with criteria agreed to by the principals.

When I look at the definitions of ``first nation'' and of ``the principals'' as they apply to this bill, I get the impression that these funds would be available not only to the 70% who are participating but possibly to the 25% who may, through whatever means, indicate they may indeed be interested in participating.

What I'm looking for is some assurance here. I thought possibly the statement of intent might put some onus of commitment on the band to actually participate for a certain period of time to be eligible for these funds. This is a wide open statement as it's presented in the bill, and I'm wondering if there is some stage in the process that a band must actually achieve to be eligible for access to these funds.

Chief Mathias: The way the present process is established, the determination of whether a first nation or a group of first nations shall receive or be allocated some loan funds and negotiation funds would occur at stage one and stage two of the six-stage process.

.1520

After the statement of intent is issued and a meeting has taken place, then we begin looking at the requirements that need to be fulfilled by the treaty commission. The commissioners are required to determine the readiness of the parties. The treaty commission itself determines the readiness of the parties by determining whether or not the parties have a clear and comprehensive mandate to come to the negotiating table and whether or not they have the support of their community, their constituency, to begin the process of negotiations.

They are also required to give an indication of the resources they require in order to establish their negotiating teams, the research they require and how they're going to establish their own offices in order to participate in negotiations. Once readiness is determined by the treaty commission, the budget process of applying for funds begins.

Ms Bridgman: My impression is that these funds could be given to the other 20% or 30% with the intent that they will prepare themselves to participate.

Your impression would be that there is indeed a commitment of some degree of faith that they will participate and consequently need some financial help to get into that position. Is that what I'm hearing?

Mr. Amos: The question is confusing the issue. I'm not sure if I understand correctly your point, but if I do understand it, you have the wrong assumption here.

The 25% who are not in the process are not eligible for access to this particular part of the money, as I understand it, until they involve themselves in the B.C. Treaty Commission process. To me it's quite simple.

Chief Pierre: If I understand your question, madam, you're wondering when the commitment is made by a first nation. You're saying once they get into the process, they have made a commitment, and in order to receive the funding, they must make the commitment to stay within the process. Is that the nature of your question?

Ms Bridgman: I'm not exactly sure if I'm implying that because they get the money they must stay to the end. That could depend on what happens at the negotiating table, etc.

My concern is that there is some kind of mechanism built into the process so that when you are looking at the budgeting or the allocations of this money, you have some type of commitment that the persons who are applying are indeed serious in pursuing it through and are not just making the application only to renege on the deal a year or six months later. It's that kind of thing. I'm sure there is some type of process in there.

Chief Pierre: It must be kept in mind that when we get into the process - and my tribal council, Ktunaxa/Kinbasket, is involved in this process - we are actually signing on to loans. These are very serious commitments we are making on behalf of our people. These are loans. We're not talking about receiving some program dollars totally in the form of contribution so that a commitment can be broken. With the process we've set up here, the commitment cannot be broken just because of something that is not serious.

Ms Bridgman: That's the clarification I'm looking for, that there is indeed some commitment. Thank you very much.

Grand Chief John: Can I add to that before you proceed, Mr. Chairman?

The thinking behind this particular provision in the legislation is simply this. In the past we have had the Government of Canada controlling the finances and making decisions about who becomes eligible to receive financing. As a result, they've had a policy where they've restricted from entering into the process people who've wanted to negotiate.

In here the funding for the process is put into the hands of an independent third party to make decisions about the adequacy of funding and about how these funds would flow to the first nations that are involved, in a voluntary way, in the process. What we've always argued is that they've been prosecutor, jury, and judge in the whole process.

.1525

The example I would like to give is simply my tribal council. Our statement of intent or statement of claim was accepted in October 1983, and it wasn't until this process was in place that we finally had the Government of Canada moving to the table. What has happened is that this process allows for an independent party to force - maybe ``force'' is not the right word - to encourage the parties to come to the negotiations where a first nation so indicates by filing its statement of intent to negotiate.

The Chairman: Thank you for clearing that up.

Mr. Harper.

Mr. Harper: I'm glad to see you, Ed and Joe and Sophie. I am very interested in this process, because it is a unique process that has been established and I support you in it.

I've been involved for a very long time in trying to resolve many of our issues. I'm speaking, of course, as an aboriginal person, as a first nations person. I've been involved in the mainstream, the political side of the political process in this country, and through that I've gained a lot of experience, with a great deal of frustration.

When I was in Manitoba I was a member of the government, the Minister of Northern Affairs. I was given the task of settling land claims and treaty land entitlement in the province of Manitoba. At that time I took to cabinet, which was passed by Order in Council, to resolve the treaty land entitlement. The ultimate responsibility rested with the federal government, but it never pursued it. So even though one side of the government was willing to settle the issue of treaty land entitlement in the province of Manitoba, the federal government just sat on it and it died there.

The Chairman: No further questions.

Mr. Harper: Will the process that is being envisioned have enough teeth to ensure that the negotiation will take place and also that all the participants, particularly the federal government and the provincial government, will honour the implementation? Also, are there any teeth in terms of timeframes that could be imposed on the process? Can anybody answer that question?

Chief Mathias: It's a very interesting question and probably an important one. As we know, governments come and governments go. We experience that in British Columbia. We are facing the possibility of a provincial election here in British Columbia in the next to 12 to 15 to 18 months. We are facing a change of government possibly. We have experienced a change of government at the federal level. When this legislation was first negotiated and put in place federally, it was the Conservative government at that time. Now we have a Liberal government and it has taken this long to get the legislation tabled.

In terms of commitment, we believe that on September 21, 1993 the Government of Canada, the Government of British Columbia and the first nations in British Columbia, when they signed the British Columbia Treaty Commission Agreement.... In our view that was the document, the instrument, that bound all parties, if not legally, then at least morally, that we have an outstanding grievance here in British Columbia and that the way to resolve it is through a process of negotiations. We believe that commitment. In our house we went through our traditional ceremonies and that, as you know, is held in high regard in our cultural and spiritual values.

.1530

The political will must always be there. We'll face frustrations, we'll face roadblocks, we'll face obstacles; but as long as we have a clear vision that the process of negotiations is the only way to resolve the question in British Columbia and politicians at all levels have high moral standards, we will be able to resolve this question. So the political commitment, the political will, always vulnerable, always subject to the winds of change, must always hold true.

Our job is to ensure that both levels of government in the negotiation process will live up to those commitments.

We are talking about collective rights. We are talking about the rights of a collectivity. We are talking about a distinct people. We're talking about distinct cultures. We're talking about cultures with their own languages and their own values and their own traditions.

The process, as we see it, is to establish a relationship between first nations in British Columbia, Canada, and British Columbia. That relationship will address political issues and legal, economic, and financial matters. That's the relationship.

We hope that before we shall hit the year 2000 many agreements will be in place. Once agreements in principle are signed by all three parties, the road is irreversible. We must keep pursuing that avenue in terms of commitment. We must rely on the goodwill of the public in general. We must rely on the goodwill of the public across Canada to keep reminding their politicians that the only way to resolve this question is to answer the call that the first nations have put forward: resolve this issue through negotiations.

The Chairman: The question is fair. Maybe it should have been put to the next witnesses. They are from the province. But the information given was good.

What we're trying to address here is whether this bill commits the federal government sufficiently to the agreement that has already been reached.

Grand Chief John: I can add to that a bit.

First, I would like to thank Elijah for the statements of encouragement and the statements of support that he has indicated. We need that support.

As Chief Mathias has indicated, we have a major political question that needs to be dealt with in this province. This treaty commission will help all three parties - the federal government, the provincial government, and ourselves - to move ahead in a timely way through the process of negotiations. If one party is stalling, even though the commission has no judicial powers or any powers other than to encourage timely negotiations, the treaty commission also has the ability, with its report, to go public and thereby in a public way to encourage the parties to continue to negotiate.

I don't know whether it has enough teeth. The question was asked about whether or not it's strong enough. Given where we are now, we think that the process and the mandate of the commission allow it to move ahead in a timely and strong enough way. But it puts the onus and the responsibility of negotiations on the three parties that are at the negotiating table. I think it will prod and then move them ahead.

For some reason or another, some negotiations might not proceed as quickly as possible. We are now running into obstacles of a policy nature that need to be addressed, probably at the table and at various political tables.

Hopefully, this commission is the right vision, the right instrument for us at this point in time.

The Chairman: Thank you. That's encouraging.

Mr. Finlay.

Mr. Finlay: I agree, Chief John. Your words, that the commission will help in a timely way and, given goodwill and the right vision, we're going to get some of these agreements and settlements, are encouraging.

.1535

I'm going to go back for a moment to the question of support and money. When I asked the chief commissioner, he indicated there was a budget for this year of nearly $24 million, and he said 80% of that was loan funding. Loan funding means somebody's going to pay it back. How does that work? Is that funding only called upon when requested? How do we envisage that working?

Chief Pierre: Of that funding, 80% is loan funding. It's the intention that as the negotiations go on, whatever amount is advanced to first nations in order to help them through this process will be repaid as we sign a treaty. That's the intention. Of the funding, 20% is in contribution, but the 80% is seen as a loan, and it is seen as a commitment from the first nations to enter into this process.

Grand Chief John: I would just like to add to that question. It's a very good question.

We've grappled with this considerably. First nations throughout the province have indicated very strongly that they shouldn't have to be in a position to borrow the money to negotiate something that is already traditional territory of first nations in British Columbia. Given the fact that all of us first nations don't have the necessary financial resources, we have had to go somewhere to borrow the money or get the money to support the process somehow, and the only thing the governments were able to put on the table was this mix of 20% contributions and 80% loans.

Most of the loan funding comes from the federal government, with some contribution funding put in by the provincial government. But it is a mixture, and 80% of it is loan funding. Aside from perhaps our own funding, those are the only funds available to us to move through resolving this huge political question we have.

The Chairman: Thank you.

Before we have another round of questions, I will invite our legislative counsel to ask you a question.

Ms Diane McMurray (Legislative Counsel, Legislative Counsel Office, House of Commons): I'll direct this question to Chief Mathias.

I believe you were one of the signatories to the B.C. Treaty Commission. I have a slight concern as a drafter. It may amount to nothing and it may well evaporate once you answer my questions.

In the treaty itself, it says ``summit'' means the first nations of British Columbia that have agreed to participate in the process. In the bill, ``summit'' is defined differently. It says: ```Summit' means the body that is established to represent the first nations''. In law, of course, that's not the same thing.

That may well have some meaning; it may not have any meaning. So let me put this question to you. In 1992, was there a body established to represent the first nations of B.C., or was it simply a matter of the first nations sending somebody who represented them - a fluid group, if you want to put it that way?

Grand Chief John: Basically the definition in the bill seems to be a bit narrower than what we have in the agreement.

The First Nations Summit is a group of first nations in British Columbia that have come together solely for the purpose of working together in a collective way to pursue the negotiated approach to treaties in British Columbia.

Not all first nations in British Columbia are involved in the process. In fact, there are some who don't like the process and want it scrapped. But we 48 first nations groups, representing 70% of the first nations, as I understand it, have come together to pursue the process of negotiations leading to treaties.

.1540

There is no formality for having membership. The formality that ultimately comes to mind, if there is a need for a checkpoint, is by the filing of the statement of intent. There are some groups that are involved with the First Nations Summit on a continuous and regular basis that have supported the summit but have not filed statements of intent.

Ms McMurray: If I were to ask you today whether there is a particular established body, could you point to it and to the people on it who would in fact be the summit? Is there an established body today that is the summit to which you could point?

Chief Mathias: I believe the definition we have in the agreements is probably the most appropriate definition. But in the sense of having a structure that was established under some form of a society's act in which one has a president, vice-president, or secretary-treasurer, no, we don't have that.

What we have, though, is a summit at which first nations gather at a series of meetings to consider one issue only: the process of treaty-making, the negotiation process. The membership, if you want to call it that, to the First Nations Summit, varies from meeting to meeting. But, generally speaking, it would be the tribal council, the chiefs or their elected representatives who come to the summit with authority to talk on specific issues, mainly the treaty-making process.

Our meetings generally attract anything from 120 to 165 first nations in British Columbia, depending on their own schedule and time, and whether they can come to these meetings. But generally, on average, we have about 130 or 140 first nations coming to the First Nations Summit meeting to talk about negotiation issues.

I hope this clarifies it. We don't have a body established that represents first nations leaders. Actually, the leaders themselves who meet in the summit are those who represent the First Nations Summit. I hope that clarifies it.

Ms McMurray: It does. That being the case, you might want to consider thinking about whether that might have a negative impact in some way. I raised it because I had concerns when I read it.

Grand Chief John: Can I take a stab at that?

We have a political position. There have been attempts by both federal and provincial government officials to have us set up a formal body that would be called a summit under either federal legislation or provincial legislation. We're saying we can't do that. On this particular issue, the traditional territories of the first nations peoples in British Columbia, it's not possible for us to subsume and subject our process to the laws of the province or the federal government.

I'm simply talking about registration now. We have said that this summit includes the names of those first nations that come together as a group to pursue the negotiation approach to the land question in British Columbia. So there is not a formal incorporated body, if that's your question, called a summit.

The summit was, in effect, ratified in a traditional gathering at the Squamish First Nation on September 21, 1992. That then was the body that moved ahead with the signing of the agreement with the Prime Minister and the Premier of British Columbia.

The summit is represented by three elected people, including Chief Mathias, Gerald Amos and me, and two people who act as co-chairs for the meeting. These five individuals are elected at large throughout the province by the first nations leadership. We meet at least every two months to pursue these issues of policy, to pursue all sorts of matters, funding guidelines and so on.

.1545

Chief Mathias: So much has taken place. We were just reminded here that the wording of the definition of the summit in our negotiations in those days was put forward by Canada. The question they were addressing in the summit was, who are you, whom do you represent, what is your mandate, are we speaking to somebody with authority?

In order to address that question, we raised it with our summit leaders, and on December 16, 1992 we provided a summit resolution to both British Columbia and Canada, and I believe subsequently, in January 1993, the same resolution. We will get that resolution and send it to you as part of our package.

Basically what that resolution addressed was the very question that is before us now: what is the mandate of the task group elected by the First Nations Summit leaders and what is the mandate of the summit in this process? That was the resolution that we considered and passed in order to address this very question.

It was related also in your Bill C-107, in clause 13. The side note is `Decisions of the Summit':

Her Majesty in right of Canada is entitled to rely on resolutions of the Summit that are certified in the manner specified by the Summit as proof of the decisions of the Summit that are set out in the resolutions as certified.

In order in part to satisfy Canada and British Columbia, we had to draft a resolution setting out the mandate of the task group of the summit, setting out the mandate of the summit with respect to this process. We can provide those resolutions to your standing committee and attach them to our brief presentation.

The Chairman: My question will be to our legislative counsel.

Does this clear it up, or do you think you might make a recommendation for amending the bill so that everyone will be clear on it in 20 or 50 years?

Ms McMurray: I think it is something that the federal government might want to consider in the event that it might create any problems. I am just raising it because I was parachuted into this bill at the last moment. My colleague was elsewhere. At a cursory glance, that caught my attention immediately, and I asked if it could create any problems. It might not. I raise it in the event that you might want to consider it.

I have one other question related to this. Are all of the first nations that were represented in 1992 by the summit, which was representatives of the first nations, now represented by the narrower group that is implied in the federal legislation; i.e., the representatives of the representatives, which is implied in the federal legislation definition of ``summit''? Have all of the first nations who signed that agreement agreed to your present representatives on the summit?

Chief Mathias: Yes, the leaders and the first nations and the group of tribal councils in 1992 are the same people in 1993 and the same people in 1995.

The Chairman: I would like to say to the chiefs that if you have a recommendation to this committee in order to clear up the matter that was just raised, we would like you to be aware that this committee will be going through the bill clause by clause on Tuesday, November 21. It would be appreciated if you could fax us a recommendation, if you have one, so we would have that in hand on the 17, or preferably before then.

Ms Bridgman: I am still trying to get my head around a couple of definitions in this funding situation. I look at the definition of ``first nation'' in the bill, and it is the same in the agreement. It implies here that ``first nation'' would apply to any band that agrees to get into treaty negotiations. I understand that this is only one process of how one can get into treaty negotiations. There are other methods, and possibly some 20% or 30% of the bands are still looking at those.

.1550

In my mind, the fact that the treaty negotiations, for this definition, do not relate it directly to this agreement tends to open up the funding clause to which I made reference earlier, in (3)(b): that the other 30%, or those persons who don't participate in this agreement but agree to do treaty negotiations, would have access to that money. I'm wondering if that was indeed the intent.

I'm sure that the allocations of the funds to the first nations are for those who are willing to use this process to achieve treaties, whereas the definition, according to the agreement, says ``any'', as long as they're negotiating in treaties. It doesn't specify the method, whether it be this process or another.

I find that to be a bit of a concern and I'm thinking that maybe we should look at it a bit more closely.

The Chairman: On the government side, do you have a question or a comment?

Mr. Harper: I have two fast questions.

You mentioned that this agreement, once reached, will be a modern-day treaty. Is it your hope that this modern-day treaty will become recognized and protected under the Canadian Constitution, in section 35?

Secondly, John had mentioned policy questions. As you know, a report came out recently dealing with extinguishment. As the Liberal Party, when we ran for election we stated that we would deal away the extinguishment. It's in the red book. That recommendation now has been put forward by Al Hamilton. Would that recommendation help the first nations process if the federal government were to remove the extinguishment clause in the whole process? Would it benefit the first nations people immediately if that were done? It's a great concern for all first nations across the country.

Could you respond to those two questions?

The Chairman: Respond very briefly, please, because there's no question of reopening the agreement that has been reached. We're addressing Bill C-107, but I will allow you some time to respond.

Chief Mathias: In our view, modern-day treaties in British Columbia will be protected by subsections 35(1) and 35(3) of the Constitution of Canada.

In relation to the issue of extinguishment, it is now the supreme law of the country that we recognize and affirm aboriginal and treaty rights. They were expressed in the form of a treaty, in an agreement. We see it as being contrary to the spirit and to the words of the Constitution that once we recognize and affirm treaty rights by agreement, by a treaty, we have a policy floating around that extinguishes those rights. In our view, extinguishment should be extinguished. Extinguishment should be abolished. What we're doing is finding a way of recognizing and affirming aboriginal and treaty rights by way of the negotiation process. Extinguishment should no longer be on the books.

We support the fact-finders' report. We urge the Government of Canada to move quickly on reversing its policy on extinguishment.

The Chairman: Thank you very much for your input. It was very informative. We really appreciate the time you took to share with us and to help us in our work.

Do you have any closing remarks? We have a few minutes left.

Chief Mathias: Just to respond to Elijah Harper, maybe I misread his earlier question, but in our view the passage of this legislation by the federal government of Canada would send a clear message to the first nations in British Columbia and to the non-Indian population of British Columbia that Canada is indeed committed to the process. This piece of legislation will formalize the process. It will ensure that the process will continue until we will have solved this long-standing grievance. That's how we view the passage of this legislation. It will be an important signal to all of us in British Columbia if we pass it in the manner presented.

.1555

Thank you.

Grand Chief John: I would simply add this one point.

There was a question about the definition of ``summit''. I've just been reminded - and I'm aware of this - that that particular definition was advocated and put forward by the federal negotiators, and we ultimately agreed with it.

We recommend that the legislation as tabled and as now before you proceed to third reading and be formalized as it is. With that, I thank you.

The Chairman: Thank you very much, Chief Joe Mathias, Grand Chief Edward John, Gerald Amos, Chief Sophie Pierre and all the others. Goodbye.

Witnesses: Thank you.

.1600

The Chairman: Thank you for accepting our invitation. This witness group will be from the Government of British Columbia: Mr. Lyle Viereck, senior negotiator, provincial team, Ministry of Aboriginal Affairs; and Robin Bassett, senior solicitor, Ministry of Aboriginal Affairs.

We have an hour, at most, for the presentation. Ideally, we invite you to make a 20- to 30-minute presentation, if you need that much time, at which time we shall open it to questions. If you need more time for your presentation, then the trick is to sneak your information into the answers to the questions.

Please proceed.

Mr. Lyle Viereck (Senior Negotiator, Provincial Team, Ministry of Aboriginal Affairs, Government of British Columbia): Thank you, Mr. Chairman.

I must make a correction. Unfortunately, Robin Bassett is ill today with laryngitis, and therefore I have our other legal counsel from the Ministry of the Attorney General, Elizabeth Argall, in attendance.

I'd like to thank the committee for inviting the Province of British Columbia to appear before the Standing Committee on Aboriginal Affairs and Northern Development to discuss Bill C-107.

Before I start my opening remarks, Mr. Chairman, perhaps I can give you a bit of background on Elizabeth and myself in terms of the preparation and passage of the treaty commission legislation in British Columbia.

Elizabeth Argall was the legal counsel for the Province of British Columbia on the preparation of the legislation and is now responsible for legal operational matters between the province and the treaty commission. I have represented the Province of British Columbia in the negotiations of the treaty commission agreement, in the negotiations and preparation of the legislation, and in negotiations of other arrangements among the two governments, the First Nations Summit, and the treaty commission.

I've had the privilege of participating in and witnessing three significant and historical events that I think highlight the importance of establishing the British Columbia Treaty Commission.

The first event was the signing of the British Columbia Treaty Commission Agreement. This event was accompanied by the traditional cultural ceremonies of the first nations in British Columbia and took place at the Squamish Nation in North Vancouver. The treaty commission agreement was signed by the Prime Minister of Canada, the Premier of British Columbia, and five representatives of the First Nations Summit and was witnessed by first nations representatives from across British Columbia.

The second event I witnessed was the passage of the treaty commission legislation by the Legislature of British Columbia. In addition to having the legislation in British Columbia receive the unanimous support of all members of the legislature, parliamentary history was established in the passage of this legislation. For the first time, representatives of first nations in British Columbia sat on the floor of the legislature during the debate and passage of this particular bill.

The third event was the ceremony held by the Hon. David Lam, Lieutenant Governor of British Columbia, at Government House. This ceremony was to celebrate the passage of the bill by the Legislature of B.C.

From the perspective of the Province of British Columbia, these historic events are symbolic of the importance of the B.C. Treaty Commission process and a testimony to the willingness and commitment of the two governments and first nations to work together to ensure that we have a stable and effective treaty-making process in this province, a process that we believe will stand the test of time.

.1605

The establishment of the treaty commission and the legislation we are reviewing today flows from the work that was done by the B.C. Claims Task Force.

I would like to acknowledge today the work that was done by two of B.C.'s representatives on that task force: Allan Williams, the former Attorney General and Minister of Labour for the Province of British Columbia; and Tony Sheridan, a former assistant deputy minister in the Ministry of Aboriginal Affairs.

These two British Columbia appointees to the task force, along with Audrey Stewart and Murray Coolican from the federal government and Chief Joe Mathias, Chief Edward John and Miles Richardson, were instrumental in providing the new structure for treaty-making in B.C.

The task force recommended how the commission should be structured and outlined the responsibilities of the commission, and I would just like to highlight a few of these recommendations, as they led into the legislative process.

First of all, the task force set out that the commission would be a tripartite organization, with appointments from first nations, the federal government and the Province of British Columbia, and that due to the number of negotiations that were expected to occur in B.C., the treaty commission had the responsibility for coordinating the start of negotiations. This was seen as a very critical role for the commission.

Once these negotiations have commenced among the three parties in British Columbia, the commission's role is then one of monitoring the progress of negotiations and ensuring that the parties move towards the targets they have set in terms of completion of a treaty. The commission also has to ensure it is impartial and fair, and to this end, the treaty commission was given the responsibility for decision-making with respect to funding of first nations.

Finally, I'd like to quote from the report:

Because these negotiations are so important to the residents of British Columbia and Canada, the commission should be accountable to the governments of Canada, British Columbia and First Nations. It should publish reports on the effectiveness and fairness of the process, and the progress of each negotiation, and present those reports to the Parliament of Canada, the British Columbia Legislature and the First Nations. Public accountability will be an important tool enabling the commission to keep parties on schedule and on course.

The recommendations of the report were accepted fully by the Province of British Columbia.

The next step was then the drafting of the treaty commission legislation. This agreement recognized that the two governments and the First Nations Summit had agreed to establish the commission, and this agreement would lead the way to legislation being established.

What the treaty commission agreement accomplished was that until legislation was in place, the commission would operate under Orders in Council of the two governments and by resolution of the summit. The funding required would be provided under this arrangement, and eventually under the legislative arrangements, by way of annual appropriations from the provincial legislature and from Parliament.

The agreement clearly defines what a first nation is in British Columbia and requires that a first nation must have a mandate from its constituents to enter into treaty negotiations. The agreement also sets out in some detail what the commission must do with respect to accepting statements of intent from first nations and how they are to proceed through the treaty-making process.

As the task force report indicates, one of the crucial roles of the commission is the assessment and coordination of negotiations. In this role, the commission works with all parties at the negotiating table to ensure they are fully ready to engage in the negotiation process, and will only start negotiations on a tripartite basis once the readiness checklist has been completed.

The commission also has in this agreement the responsibility for making allocations to first nations, and finally, the agreement again sets out that the commission is responsible for keeping a public record of negotiations.

.1610

I think that the members of the committee can see that the legislation they have in front of them is the culmination of the substantial work that was done to define, through the task force report and the agreement, the process of negotiations in British Columbia.

I wanted to use my opening remarks as an opportunity to show how the legislation was built and how this legislation has now been brought before the Parliament of Canada. I would like to point out two aspects of the legislation that are crucial for examining its operation.

First, the legislation brings the key elements of the treaty commission agreement into the legislation. This is to ensure that those elements that were considered crucial by the province, Canada, and first nations were incorporated into the legislation. This means that those elements can only be changed by way of an amendment to the legislation. This amendment would have to be enacted by the Province of British Columbia, the Parliament of Canada, and by a resolution of the First Nations Summit.

The legislation, as well, gives the ability to governments and to the First Nations Summit, through the treaty commission agreement, to make changes to the agreement that reflect a consensus for improvement or for implementing more effective ways of negotiating treaties in B.C.

Mr. Chairman, I think it's obvious that the Province of British Columbia supports this legislation you have in front of you. I and Elizabeth Argall would be pleased to address questions the committee may have with respect to this particular piece of legislation.

Those are my opening remarks, Mr. Chairman.

The Chairman: Thank you very much. Are there any questions from any of the members?

Mr. Finlay: I would like to ask the question that my colleague Elijah Harper asked of previous witnesses. In this legislation, is the issue of extinguishment adequately avoided or covered? We have had the report of Justice Hamilton. We know that certainty and extinguishment have been sticking points in previous attempts to get treaties negotiated and land claim settlements. Would you give us your view on how this point has been dealt with in this legislation?

Mr. Viereck: The legislation itself is a facilitating bill; it facilitates the negotiation of treaties. It clearly sets out that the treaty commission will ensure that negotiations take place and that they are coordinated. It has the responsibility of ensuring they are completed.

The bill itself does not speak to what the parties are to negotiate at the table. It is the responsibility of the two governments to determine the policies and positions they will bring to the negotiating process, along with the first nations, in terms of their aspirations with respect to the treaty.

So, no, this bill does not address the issue of extinguishment or certainty. The recommendations of the Hon. Allan Hamilton would not be dealt with through this particular piece of legislation, from the Province of British Columbia's point of view.

Mr. Finlay: By not dealing with it or avoiding the matter, but coming up with agreements that all three parties agree to, it may well be meeting what I understand to be Justice Hamilton's suggestion.

.1615

Since the process set up by this bill seems to be a very fair and balanced process in which the summit has the same degree of authority and decision-making as the Government of Canada and the Government of B.C., I wonder if, once some agreements are signed or settled, we won't find that the goal has been achieved and that in fact the comprehensive land claims policy of the federal government and the specific land claims policy of the federal government have been improved upon, have been overridden, perhaps have been made obsolete.

Is that a possibility?

Mr. Viereck: There are probably two parts to your question.

One is the question of whether in treaty-making the issue of extinguishment and certainty will be addressed. I know that Canada has policies, and I think the study that the Hon. Minister Irwin started was an attempt to address Canada's policy position on this matter. The questions of how treaties are treated upon being completed are dealt with under section 35 of the Constitution. So the matter will be dealt with in the treaty-making process.

My personal view would be that, as treaties progress over the next several years, we will come to an accommodation on this issue and that accommodation will represent the basis upon which questions of certainty with respect to aboriginal rights will be dealt with in Canada.

The Chairman: I now invite our legislative counsel to ask you one or two questions.

Ms McMurray: Mr. Viereck, you said something that caught my attention. I assume you are speaking about the B.C. legislation in your presentation, not the proposed federal legislation. You said that if there were to be an amendment to that legislation, then it would come by way of essentially the three parties: the feds, the provincial government, and a resolution of the summit.

Is there a clause to that effect in the B.C. legislation?

Mr. Viereck: If I said that, then it certainly wasn't the intent.

What I said was that if the legislation was to be amended, it would require an amendment to be passed by the Legislature of British Columbia and by the Parliament of Canada and by way of a resolution of the First Nations Summit. That is the process by which an amendment can come into effect, because the bill itself, as I'm sure you've noted, comes into effect upon the Province of British Columbia passing its legislation and proclaiming it, the Parliament of Canada passing its legislation and proclaiming it, and the summit passing its legislation and proclaiming it. So an amendment to this legislation, in order for it to come into effect, would require consent of the Legislature of British Columbia, consent of Parliament, and a resolution of the summit.

Ms McMurray: I find that to be an interesting statement. I find no evidence for that. I don't know the B.C. act, but I certainly don't find any evidence for it in the federal legislation. My feeling is that it is quite a stretch, but it might just be a fine point of law.

All I see in this particular legislation is that it says: ``Nothing in this Act shall be interpreted as preventing the principals from amending the agreement from time to time''. If that agreement was in fact in conflict with this act, then the act would prevail. No agreement prevails over an act of a legislature.

So I'm not really sure about what you're trying to say here.

The Chairman: Take whatever time you need. That's okay. We're in no rush.

.1620

Mr. Viereck: The question that has been raised is the intention of the parties at the table. The treaty commission agreement sets out that the legislation will be established by way of the three parties. The intent in terms of negotiation of this legislation between the three parties has always been that it would be done by way of mirrored legislation. So the legislation passed by B.C. would mirror the legislation passed by the Government of Canada, and the resolution of the summit would be of a similar nature.

On the question you have raised, if, for example, Canada were to pass amendments to these bills, we would then have to look, depending upon the nature of them, at whether or not the result of that is in conflict with the legislation that exists in British Columbia. So the intent in terms of making this work is to have them operate in the same way.

Ms McMurray: What you are saying is that it's not enshrined in law; it's just that it wouldn't work as a puzzle, so to speak. The whole package wouldn't work unless there was reciprocity, if I can put it in that way.

Mr. Viereck: Yes.

Ms McMurray: There's a very unusual provision in here. As a drafter, I have never seen one like it. I'm sure there's a very good reason for it, and perhaps you could illuminate.

Subclause 4(2) states:

Subject to section 14,

- which deals with the Access to Information Act and the Privacy Act -

the Commission shall for all purposes be treated as having been established by or under an Act of the Legislature of British Columbia.

Why was that provision put in there? I find that to be an interesting provision.

Mr. Viereck: Perhaps I will let our legal counsel elaborate on the point.

Your question is with respect to subclause 4(2) of the bill. My understanding is that that provision was to ensure that as the treaty commission undertakes its responsibilities, the laws that are passed by the B.C. Legislature - for example, labour standard laws - would apply to the B.C. Treaty Commission. There are probably other examples, but I think it was intended so that there would be clarity in the jurisdiction over the operation of the commission.

Ms McMurray: Is there any particular reason? Is it more advantageous if it operates under provincial jurisdiction; for example, provincial labour standards as opposed to the Canada Labour Code? Was there a particular reason for that, or was it just an agreement between the feds and the B.C. government as to where the jurisdiction should be placed?

Mr. Viereck: My understanding would be that that was the understanding we had reached in terms of this particular legislation.

The Chairman: There being no other questions, we invite you to make closing remarks, if you have any.

Mr. Viereck: I would just like to say that it was a privilege to appear before the committee. I would like to commend you in terms of the work that you have in front of you. Certainly British Columbia looks forward to the passage of this legislation.

The Chairman: Thank you very much for accepting our invitation and for the information you shared with us. As a result of it, we will be able to complete our work very soon.

Mr. Viereck: Thank you.

The Chairman: This meeting stands adjourned.