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, March 16, 1999

• 0915

[English]

The Vice-Chairman (Mr. John Finlay (Oxford, Lib.)): I call the meeting of the Standing Committee on Aboriginal Affairs and Northern Development to order. We have sufficient members here for receiving reports from our witnesses. The order of the day is Bill C-56, An Act respecting an agreement with the Norway House Cree Nation for the settlement of matters arising from the flooding of lands, and respecting the establishment of certain reserves in the province of Manitoba. The committee is continuing its consideration of clauses 2 and 8.

I'm the vice-chair of the committee. The chairman is busy in northern Quebec for the next three days, so we will carry on without him as best we can.

The witnesses before us are Andrew Clarke, Bryan Hart, Luke Hertlein, and Leonard McKay, all of the Norway House Cree Nation Band.

I'm suggesting that they have 10 minutes for their presentation. We have 20 minutes for questioning, and then we'll move to the next presenter. That's half an hour each, if everyone is satisfied with that. Are there any comments?

I call on Andrew Clarke as our first witness.

Mr. Andrew Clarke (Band Member, Norway House Cree Nation): Good morning, ladies and gentlemen of the standing committee. My name is Andrew Clarke. I am a member of Norway House Cree Nation. I live in Winnipeg, Manitoba. I'm a professional financial planner by trade. My treaty number is 3961.

I haven't been involved in any court proceedings or coalitions, contrary to what you have heard before this committee. I'm here to speak on behalf of my family, part of which is still in Norway House, on other reserves, and off reserve in such places as Thompson and Winnipeg.

When I was small, I never knew too much about the hydro projects. Sometimes when you were walking in the bush, you would come upon the hydro survey stakes. To a child they made wonderful swords.

In the mid-1990s I received some flood moneys. It was around Christmas time, and we had to go downtown, right across from the Indian Affairs building. We had to stand in line—there were lots of us there as a number of our band members live in Winnipeg—and when I finally got to the front of the line, I asked the people who were handing out the money what I had to do for the money I was about to receive. They laughed at me and said it was a Christmas present and not to worry about the money because there was much more to come in the future.

In June 1997 I was told by my mother and a fellow band member that a big vote concerning the Northern Flood Agreement was going to happen. I was concerned. I went to the public meeting at the aboriginal centre in Winnipeg. When I was there, no chief or councillors were present. I was there for an hour and a half. The consultants were there, but they could not answer my questions on revenue sharing, wildlife management, and the investment of the trust funds.

The first referendum vote was concluded on July 29, 1997. I refused to vote. My questions had not been answered by anyone. The vote failed by five votes. One of our elders was quoted as saying that the five fingers of God came down from heaven and spared our people. Almost 1,000 people did not vote.

A difficult period began in August 1997. After many telephone conversations, I finally came across an August 1, 1997, letter from Sandra Jackson to Robert Roddick. This was a key letter. This was a letter that Sandra Jackson of Indian Affairs wrote just three days after the first vote was concluded. In this letter Sandra Jackson made the allegation that there was something wrong with the voters' list, which had been prepared by Indian Affairs and the first nation. In this letter she said that due to these possible inaccuracies, the Government of Canada could condone a second referendum.

• 0920

On September 8, 1997, I asked Ms. Jackson to supply me with the documentation she used to base Canada's approval to support a second referendum. On September 18 I received a letter from Ms. Jackson saying that the first vote was not rejected. This was a government official telling me in writing that a vote that had failed by five votes had not been rejected.

The second referendum occurred on September 23, 1997. Early that morning I set up an information picket on the public sidewalk outside of the Winnipeg Aboriginal Centre where the vote was to be held. I observed Mr. Robert Roddick inside and outside of the building. I watched him speak and give directions to two security forces that were patrolling the building. At one point Mr. Roddick walked directly over to me and proceeded to take pictures of me. I asked him to stop, but he refused. I felt very intimidated. For my efforts I was assaulted on the public sidewalk by one of the two security forces present that day. I was grabbed and thrown to the ground on the public sidewalk.

I voted no that day. I can tell you that the ballots were in English only. There was no Cree at all on the ballots. I observed a Cree interpreter leave the building on a number of occasions and come back hours later with shopping bags. I also observed the provincial government observer leaving and coming throughout the day.

The people in the voting room wore no name tags or identification. Early in the morning I walked in and asked everybody for their name. Some people refused to give me their name. These were people who were right in the voting area where the ballots were.

I watched the Federal Court proceedings. I wrote many letters to the Premier of Manitoba. I also wrote to the honourable member, Jane Stewart. Some of my letters were answered, some were not. I have many questions.

Under the NFA we have the right to free navigation of the waterways. Under the MIA we do not. The management of wildlife resources is permitted under the NFA. In the MIA it is taken away from us.

The referendum process was fatally flawed when there was no appeal of the results of the first vote. The rule book that was touted in front of us and given to us before the vote said there was an appeal process. That was never followed. A decision to hold the second vote was made by the four parties involved but with no consent or mandate from the people of Norway House Cree Nation. There was no freedom of speech. I attempted to have a video tape played by the TV station, but they refused. This video was shot in Cross Lake, and it documented the process of negotiation. It was not permitted to be viewed in Norway House. There was no democracy in action. There was just anger on the part of a few officials involved with the four parties.

The MIA ends all of Canada's, Manitoba's, and Hydro's past, present, and future obligations to our tribe under the NFA.

• 0925

When I spoke to you, David, last spring in your office, you came off as a friend of the Indian people. You said you were concerned. Watching the e-mail of your statements to the standing committee over the past two weeks certainly leads me to believe this is not true.

Thank you.

The Vice-Chairman (Mr. John Finlay): Thank you, Mr. Clarke.

Mr. Konrad.

Mr. Derrek Konrad (Prince Albert, Ref.): Thank you very much for your presentation and coming all this way. I've read a number of the presentations in the books that have been prepared for us. Believe me, there is a significant amount of information.

One of the questions I have concerns the compensation. We had a witness here last week who said the original flood agreement contained a provision for four acres of land to be given for every one acre that was flooded. Under the implementation agreement, that rose to sixteen acres to one acre. An implementation agreement, to me, should implement the terms of an agreement, not rewrite the agreement in either direction. Why do you suppose the sixteen acres to one acre provision was included and then some of the others were left out? What was that about?

Mr. Andrew Clarke: If anybody knows where Norway House is, we're out in the middle of the boonies, so you can give away as much land as you feel like and not encroach upon the interests of very many other people. In regard to the land, I think there was a realization that the land that had been flooded was land that had existed for thousands of years and had built up an ecosystem. When the projects were completed, they changed the shoreline, and that takes time to heal. It takes hundreds, maybe thousands of years for that land to be productive again. I think there was a realization that maybe we should have more land. But you can give away as much as you want in northern Manitoba; it's not really going to matter too much to anybody else.

Mr. Derrek Konrad: So what you're saying is they enriched the one area that wouldn't make much difference—

Mr. Andrew Clarke: Exactly.

Mr. Derrek Konrad: —and cut back on some real ones.

Mr. Andrew Clarke: Yes.

Mr. Derrek Konrad: Let me know when I'm done; I just have short questions.

What would be necessary to make a second referendum acceptable, or would it never be acceptable?

Mr. Andrew Clarke: I think they should have had a mandate from the people. There was a first referendum. It was turned down; it was denied. I think at that point the chief and council would have had to come back for a new mandate and say, “Listen, the first one has failed. Obviously there are reasons for it failing. We'd like to re-address that and go back to the negotiating table. Then we're going to come back and put another deal in front of you and we want you to vote on that.”

Nothing changed between the two, except the voting requirements were lowered.

Mr. Derrek Konrad: So you're in no hurry to see this legislation passed then. You would like to see it held up essentially until after another band election?

Mr. Andrew Clarke: I'm not necessarily saying it has to be a band election. I think there has to be some type of form for the people to express why they declined the first offer and for the chief and council to have a new mandate to come back in and say here's the deal; we fixed the parts that people might not agree with.

Mr. Derrek Konrad: What if they came back with the same agreement and people—

Mr. Andrew Clarke: That's what they basically did. They came back with it, but they lowered the requirements too.

Mr. Derrek Konrad: But if the requirements were set the same as previously and people accepted it, that would settle the question then.

Mr. Andrew Clarke: In hindsight, in looking at it, yes.

Mr. Derrek Konrad: Provided that the same requirements were set?

Mr. Andrew Clarke: Yes.

Mr. Derrek Konrad: Okay. Thank you.

The Vice-Chairman (Mr. John Finlay): Thank you very much, Mr. Konrad.

Mr. Bryden.

Mr. John Bryden (Wentworth—Burlington, Lib.): I want to observe, when it comes to referendums, that during the Quebec referendum one of my colleagues went down to Montreal prior to the vote. She went into one of the more ethnic areas of Montreal—allophones. Then she went from street to street trying to persuade people to come out to vote in the referendum. What she found was that about every second street wasn't even enumerated. In other words, a lot of people who would have voted, and voted no in the referendum and voted for Canada to remain united, weren't even registered to vote. The conclusion that many of us drew from that was there was some manipulation of the referendum.

• 0930

That leads me to offer to you the observation that any referendum process is subject to influence. It's a very poor mechanism for getting a real sense of the people if you're going to avoid attempts to influence the result. It's almost impossible to avoid such attempts.

Can you suggest an alternative? Should there have been a way other than a referendum to test the attitude of the people towards the agreement?

Mr. Andrew Clarke: Traditionally the Cree people have come to decisions by consensus. So the referendum process is a little bit foreign to us. I can submit that the consensus process would be another avenue available to the people. I can also certainly tell you that I wrote a letter to Sandra Jackson and to Robert Roddick concerning the mail-in of ballots, and that was denied. I can tell you that three of my family members were in Alberta and could not possibly travel all the way to Winnipeg at that point in time. So their votes were never registered.

Mr. John Bryden: I come back to Mr. Konrad's point. We can't sit forever on this. Surely we have to move forward, admitting that the referendum process was flawed. But still a bill has to come forward, an agreement has to be struck. We have to put this behind us, and we obviously realize that not everyone is going to be happy with it. So shouldn't we be focusing now on what's wrong with Bill C-56? Shouldn't we be focusing on that aspect rather than going back to a referendum process that would have been flawed no matter how it was done?

Mr. Andrew Clarke: From what I understand of what you're saying, it's that the process for Indian people should be lowered in regard to everybody else. That's not acceptable to me. There were so many different things going on, and looking at it from where I am, I'm just not comfortable with it.

Mr. John Bryden: Then we'll go back to your consensus point. How do you arrive at a consensus? Would it by ballot? Would it be by the spokesmen for the Cree community, for the Norway House community? How do you get someone telling the government, or any outsider, what is the feeling of the people that should be acted upon, always allowing for the fact that you're going to have people who are going to be objecting regardless? One of the problems of the democratic process is that there are always going to be people who object to the process, whatever you're doing.

Mr. Andrew Clarke: The consensus method is slower, but it is achievable. The shining example of that is the people of Cross Lake, who are moving ahead with the consensus method right now. So I think it is doable.

We've only really been at this for 20 years. There are other tribes out there who have been at this process a lot longer than we have and who have just succeeded. I'm thinking of the Nisga'a.

Mr. John Bryden: Thank you.

The Vice-Chairman (Mr. John Finlay): Thank you.

Mr. Bachand.

[Translation]

Mr. Claude Bachand (Saint-Jean, BQ): I cannot overlook Mr. Bryden's comments on the so-called antidemocratic referendum in Québec. With what we are reviewing today, we might want to set aside this referendum because according to me, the Québec referendum was highly democratic. Approximately 95% of the people voted. If we want to talk about democracy, we could certainly look into how much money was spent by the Council for Canadian Unity. This organization's expenses were three times higher than Québec's. In fact, we also asked questions about this in the House. We should therefore set aside the Québec referendum, unless Mr. Bryden and myself could eventually have an open debate on this issue. I'm not sure however we could determine who is right or wrong in such a debate.

• 0935

My question on the referendum process is addressed to my friends. In your presentation, you clearly say that the parameters for the second referendum were changed, and that in the end, people were able to get what they wanted. Now you say that the band council could have consulted before holding the second referendum.

There is always a problem with the band council members. We consider that these are people who were democratically elected by the overall population of the reserve. Are you saying that you question the band council's democratic election process? It seems to me there is a problem here. We are always confronted with this here. Some people come and tell us that the process was not respected, but I always answer that they are the ones who elect the members of the band council. All they have to do is not elect them the next time.

I would like to hear you on this. Do you still trust your band council?

As for the compensation payments, the official spokespersons who came to meet us clearly said that all members of the community knew exactly how the compensation would be paid. Do you agree with this? They say they did not change the compensation payment sequence after the second referendum. They told us: "The people knew and simply voted on the same proposals we had made for the first referendum."

My last question is the following. In the other communities, such as Split Lake, Nelson House and York Landing, there are action plans to eliminate poverty. According to you, is poverty still widespread on these reserves? What is the prevailing attitude at Norway House? Does the community seem divided on this second referendum and on the compensation they received? What is the atmosphere on the reserve? Could you tell us?

[English]

Mr. Andrew Clarke: I spoke to my grandparents before the first referendum, and I asked them what they thought about the payment of moneys that were coming. I said to them, you're getting all the literature coming from the chief and council, there are the videos on TV, and there are the public forums. One of the very first things my grandfather admitted to me was that he couldn't read or write, and neither could my grandmother. I never knew this. My grandfather worked for the province for many years and my grandmother works over at the hotel. They can't read or write. The way they told it to me was that they looked at the moneys that were going to be paid as their ability to purchase gifts for the rest of the family, and they had no concept really of what they were going to give up for this money.

I'm not against the chief or council. I think they've done a tremendous job under the circumstances. They've been under tremendous pressure, pressure from the community and pressure from the Government of Canada. I don't think we had to say that the chief and council had to be turfed out or another election called. But possibly, yes, another election should have been called just as a reaffirmation of the democratic process, because the question was being put to us again when we had already denied it the first time.

The payment of moneys at any time, I believe, and this is a personal belief, especially when a vote is very near, should not be done, especially when the moneys were contingent upon a vote going through. If the vote was not positive, no one got any money, but if the vote did go through, then people received $1,000. If you were an elder, it was $1,500. So a positive vote outcome, I believe, was influenced by those moneys being offered, and that should not have occurred. I don't think that would be acceptable anywhere else in Canada, but it certainly is being indicated to me that it is acceptable for Indian people living on some remote reserve.

The Vice-Chairman (Mr. John Finlay): Thank you.

Any further questions?

Nancy, please.

• 0940

Mrs. Nancy Karetak-Lindell (Nunavut, Lib.): No.

The Chairman: Ms. Hardy.

Ms. Louise Hardy (Yukon, NDP): What did you hope to achieve through coming here as a witness? Was there an objective that you were after, something you wanted to come out of it?

Mr. Andrew Clarke: Yes. I wanted the standing committee to hear my personal story of what has happened over the last 20 years, so to speak, from when I was a child pulling up the stakes and playing swords, not knowing what the stakes were, to today, when I realize what those stakes really mean.

These are high stakes. Hydro makes a profit of over $100 million a year off the backs of our people. That's one of the reasons why Manitoba enjoys the lowest power rates in the world. I think it's very important that all the committee members here understand that, yes, there was a process that went on—I was very happy to see that process go on—but it was flawed. I would love to see the conclusion of an agreement, but I'd like to see it more in the tones of the Northern Flood Agreement that was set out in 1977. That's what I hope to accomplish by being here today.

Ms. Louise Hardy: What happened after you got thrown down on the ground?

Mr. Andrew Clarke: The police were called. The police showed up. There was a report. I sought medical attention two days later because my shoulder was stiff. It was all sort of almost surreal. I couldn't believe it was happening, but there were two separate security forces patrolling the inside and the outside of the building.

Ms. Louise Hardy: Is that normal?

Mr. Andrew Clarke: I don't know. I don't think so.

Ms. Louise Hardy: Did it happen in the first referendum? Was there security?

Mr. Andrew Clarke: I did not vote in the first referendum, so I couldn't tell you. I did not even go near the building, but this is definitely what happened in Winnipeg in the second one.

Ms. Louise Hardy: Thank you.

The Vice-Chairman (Mr. John Finlay): Thank you very much.

Mr. Bryden.

Mr. John Bryden: I have one follow-up question.

You talk about consensus. Can you describe to me the process you're actually talking about? How do you arrive at a consensus that's meaningful? Do you do it by vote? What do you do? How do you engage the people? In every democratic process there are a number of people who are not engaged in that process, who may not vote, who may not come, who may not know the issue, who may not bother with following the issue. I actually reject the suggestion you have made that one does not understand what is going on because one is illiterate. I don't accept that at all.

Tell me what you mean by consensus. What process would you put in place? What are the mechanics?

Mr. Andrew Clarke: That's a very good question, and the example I offer is that I belong to the Aboriginal Business Leaders and Entrepreneurs, which is also called ABLE. Our membership is made up of aboriginal business leaders and entrepreneurs in Manitoba. We've used the consensus method there to formulate how we deal with each other and with mainstream society.

The group was formed about four or five years ago, and it has been a lengthy process. It takes a lot longer than the democratic process in that you have to involve everybody. We're talking about businesses here that range from having 30 or 40 employees and millions of dollars in revenue, all the way down to the one-person operation run out of the home. These are all native people, and we all come together in very large meetings at which each person can bring forth his or her concerns. No one is ignored. From there, each issue is debated to the satisfaction of that member. Sometimes it is a very long process. A lot of the time it's just more or less a misunderstanding or a misconception on the part of the person who's bringing forth the concern.

I can tell you that at the end of the day people are satisfied when a meeting concludes. There rarely are any votes. The person who has brought forth the concern or issue is satisfied that it has been looked after. From there, we proceed with the mandate of where we're going with that group. We actually let the members drive the whole process.

• 0945

Mr. John Bryden: So what you're saying is that you don't believe in a democratic process. What you're saying is that your consensus actually operates by an intellectual elite deciding what's good for the people after listening to the people in their community. Is that not what you just said?

Mr. Andrew Clarke: No, I did not.

Mr. John Bryden: It sure sounded like it.

Mr. Andrew Clarke: It might sound like it, but that's not the way it operates. The person from the lowest common denominator can bring forth his or her concerns and can effectively change—

Mr. John Bryden: The record will say that you do not believe in a vote. That is what you said.

Mr. Andrew Clarke: No, I believe in alternate forms of process. The democratic process is also one.

The Vice-Chairman (Mr. John Finlay): Thank you.

Mr. Konrad, you have two minutes for a very brief question.

Mr. Derrek Konrad: Thank you.

I was just wondering what your thoughts would be on having alternate forms of compensation for people who choose to opt out of the MIA—which is a reserve-based type of compensation—and take either cash payments on a per capita basis, as you had been, I presume, enjoying up until those were terminated, or a straight cash buyout or land in fee simple that would not be a part of their reserve. I know you're from Winnipeg, so it will be a little difficult for you to enjoy the benefits of the MIA to some extent until things start paying off at the band level.

Mr. Andrew Clarke: I've always been a firm believer that the deal should have been one of revenue sharing. The tribe should have been an equal partner with Hydro, deriving benefits from it on an ongoing basis. I believe that in revenue sharing the tribe would enjoy much greater benefits and control over that resource. I don't think the per capita payments should ever have been made. For the greater good of the community, infrastructure projects should have been put in at a much earlier date. The chief and council have tried their best to bring these projects on-line, but we've suffered for many years.

Mr. Derrek Konrad: Okay, but just to get you to the point where I think you'll answer my question, infrastructure on the reserve is important to the people on the reserve. People who don't live on the reserve but who are a part of the band, however, don't benefit from that type of spending. Is that acceptable to all the people who live off reserve?

Mr. Andrew Clarke: You may live off reserve, as I do, but you're always going back to the community. The social well-being of family that still remains is critical. The last thing you want to get are phone calls saying your brother has attempted suicide because he just can't find work at home. So from my point of view, there's not a lot of benefit being derived by being off reserve, but it certainly benefits my family. For me, that's enough.

Mr. Derrek Konrad: But would it be enough for everybody?

Mr. Andrew Clarke: I can only speak personally. I can't speak for anybody else, but that's the way I would feel about it.

The Vice-Chairman (Mr. John Finlay): Thank you very much, Mr. Clarke. You're well within our time. We're merely two minutes over, in case anybody's counting.

I will now call on Mr. Bryan Hart, please.

Mr. Bryan Hart (Band Member, Norway House Cree Nation): Thank you, Mr. Chairman. I want to thank this committee for allowing me to speak here today on this very important issue and a number of issues regarding part A of Bill C-56.

On the plane ride here yesterday, I couldn't help but notice that as the parliamentary secretary settled into his first-class seat, Leonard McKay and I sat in the back row.

We are here today to try to set the record straight on part A of Bill C-56. Judging from what I've read from the last three hearings, it's not going to be an easy task. I feel good that we can all sit here as equals, though, no matter what position we have in life. I do see all of us around this table as equals right here, and I thank you once again for inviting me to speak.

• 0950

Good morning. My name is Bryan Hart, and I'll introduce myself as a concerned band member of Norway House Cree Nation. My concerns today are directed to our trustee, Her Majesty the Queen in right of Canada, as represented by the Minister of Indian Affairs and Northern Development, as is written on the cover of the Northern Flood Agreement.

A lot could be said about what happened at Norway House during the referendum process, and a lot will be said today, I'm sure. But I'm not going to spend one moment criticizing our chief and council. I can sympathize with their position. I don't think it's easy being a chief and council in any first nation community. For the record, I'd like to maybe just add that our chief and council have been boxed into this process.

If you look at my brief—I'm not too sure if everybody has a copy of it—I've only included a discussion on two issues, part A and part B. I also have a part C, which I have written down as recommendations. However, before I get to my brief, I feel it's necessary to clarify some key issues for the record.

A lot has been said about the decision by Justice Muldoon in Federal Court, and it has been raised in this hearing a number of times. As an applicant in that case, I want to make sure the record shows that this case was all about the legality of a second referendum. That's it. As for any other issues regarding suppression of rights, obstruction from using communication media at Norway House, or intimidation perhaps, they weren't before Francis Muldoon in his decision. The record needs to be clear on this issue. I think it's shameful that the parliamentary secretary and certain members of this committee have continually used this decision as a way to gloss over some very key issues involving part A of Bill C-56.

I want to briefly talk about the issue of treaty rights and about how the master implementation agreement purports to have a protection clause, or what we call its non-derogation clause. It is not helpful to this committee to have it on record that a certain member of this committee says categorically that treaty rights are protected, because that's not the case. I have never seen a non-derogation clause quite like the one in the master implementation agreement. It says, “Nothing in this agreement is intended to alter or affect aboriginal and treaty rights”. If that is the case, if we can really feel comfortable and good about the protection and treaty rights, why can't we just say that nothing in this agreement alters or affects treaty rights?

This non-derogation clause says nothing about NFA rights, which we believe are treaty rights. I would feel much better if this clause said that nothing in this agreement alters or affects aboriginal and treaty rights or NFA rights. This is a very critical point, because if, five years from now, the Supreme Court of Canada rules that the NFA is a treaty, the crown and the other parties are indemnified through the master implementation agreement. Their argument, simply put, is that nothing in this agreement is intended. We never intended to affect your treaty rights. We never intended to do it.

• 0955

It's smoke and mirrors. NFA rights are treaty rights.

I'm also a little concerned about the exchange of evidence when Peter Russell was here before you. Again, I turn to the parliamentary secretary. I say it's an outrage for you, David, to criticize Peter Russell and say he was blatantly incorrect when he said there weren't any Cree ballots. For the record, Peter Russell was correct on that issue. There weren't any Cree ballots. It serves this committee or the record no benefit to say otherwise.

I'd like to turn your attention to my brief. I want to read just a few parts of it.

The only formal and publicly available document that has answered the question on the status of the Northern Flood Agreement as a treaty is a 1991 Aboriginal Justice Inquiry report. It states:

We believe the Northern Flood Agreement is a land claims agreement within section 35(3) of the Constitution Act, 1982 and that the rights within the NFA are treaty rights within section 35(1). As a treaty, the Northern Flood Agreement must be interpreted liberally from the Indian perspective so that its true spirit and intent are honoured.

No other professional person with a legal background has put forth their reputation in a formal and public fashion and refuted the AJI conclusion.

In this regard, the Manitoba Chief Justice Hamilton and Associate Chief Judge Sinclair have answered this question both openly and formally. The same question has been specifically raised a total of seven times at the standing committee level right here in this forum, four times in the 1994 Split Lake hearings, and three times in the current Norway House First Nation hearings. Yet this committee still does not have a sufficient answer. Each time the question is raised by a member of the standing committee, the respondent either admits not knowing the answer or replies that the status of the Northern Flood Agreement as a treaty is not relevant. In either case, the most fundamental question and issue in this hearing has been continually evaded, despite the AJI conclusion and many other long-standing claims that the NFA is a modern-day treaty.

Ladies and gentlemen, it is why we're here today. It's the question of treaty rights. The NFA is a treaty. I'd welcome anybody here to put your reputation on the line and say it is otherwise. Until you can do that, you have a responsibility as responsible people, as members of Parliament, to ensure that issue and that question is answered sufficiently. We're talking about rights. This is not a game.

I've attached in my brief appendices, A1, A2, and A4. They're excerpts of transcripts of when the question was asked and the exercise in fluffery, or the response, that was given. Appendix A3 includes testimony by Warren Allmand on the same question. It's not just me today who is saying these things, that the NFA is a treaty. It's not just me. The status of the NFA as a treaty has everything to do with the issues involving NFA implementation as intended in 1977. As a treaty, the NFA must be interpreted liberally so that its true spirit and intent are honoured.

The Vice-Chairman (Mr. John Finlay): Mr. Hart, your 10 minutes are up. Now I'm quite prepared to let you go on presenting, but I'm not prepared to extend the question time if you do that.

Mr. Bryan Hart: Okay, I'll wrap up.

The Vice-Chairman (Mr. John Finlay): Thank you.

• 1000

Mr. Bryan Hart: Thank you, sir.

In other words, the non-Cree parties—and I mean Canada, Manitoba, and Manitoba Hydro—cannot hide behind claims that the NFA is full of vague and ambiguous wording. The NFA must be viewed as a modern-day treaty until such time as a contrasting formal and public legal opinion is made available. And I challenge anybody to bring that forward.

The issue of the ambiguity and vagueness is crucial here. It's the reason we're here, the reason the MIA is here, and why we have part 1 of Bill C-56. I say to you, the committee, that the NFA is a treaty and that the crown, our trustee, is breaching their fiduciary obligations by holding the NFA by the letter of the document instead of the spirit and intent. It's shameful.

A last issue I want to point out—and I'll finish up—is that the MIA has a subtle clause in there that clearly requires an environmental assessment. If you look at my brief, I've outlined this issue.

There are just three recommendations I'd like to make, and I'll conclude.

In consideration of part 1 of Bill C-56, it is recommended that the Standing Committee on Aboriginal Affairs and Northern Development hold public hearings at Norway House, Manitoba in order to make better decisions on the issues of community consent, suppression of opposing views regarding the master implementation agreement, and other vital human rights issues.

The Standing Committee on Aboriginal Affairs and Northern Development must either accept the conclusion of the Aboriginal Justice Inquiry report that the Northern Flood Agreement is a treaty, or must itself initiate a full and complete examination in terms of its treaty status.

The last one is that the Standing Committee on Aboriginal Affairs and Northern Development must fully examine the master implementation agreement in terms of the Canadian Environmental Assessment Act's legislative requirements.

Thank you.

The Vice-Chairman (Mr. John Finlay): Thank you very much.

Mr. Konrad.

Mr. Derrek Konrad: Judging from the tenor of your recommendations, I would assume you're prepared to have Bill C-56 shelved for an indefinite period while these issues are dealt with.

Mr. Bryan Hart: I believe the context of the issues, the depth of these issues about treaty rights, about rights, requires that as responsible members of Parliament you really should have all the facts—you require that upon yourselves—before you make a decision that will affect our treaty rights.

Mr. Derrek Konrad: I take that as a yes.

Mr. Bryan Hart: Yes, absolutely.

Mr. Derrek Konrad: Thank you. Would you talk a little bit about the Aboriginal Justice Inquiry report, please? Fill me in on the background to that. Who conducted it, and what is it about? I'm fairly new to this whole process.

Mr. Bryan Hart: Well, the Aboriginal Justice Inquiry report, as I understand it, was a response—a very much needed and necessary response—to a number of outstanding issues dealing with aboriginal welfare, aboriginal rights within the province of Manitoba. There are a number of very well-publicized incidents and cases that received a lot of media attention and prompted pressure on the provincial government of the day to do something to look into aboriginal issues. So the Aboriginal Justice Inquiry was initiated, and Chief Justice Hamilton in Manitoba and Associate Chief Judge Murray Sinclair were the two commissioners.

Mr. Derrek Konrad: Thank you. I have another quick question that I'll ask again. I keep asking this. Regarding compensation, if the option were there to receive compensation in a form other than having it go to the band to be held in common, would that be acceptable or not? Or do you know people to whom it would be acceptable?

Mr. Bryan Hart: Could you repeat your question, please?

Mr. Derrek Konrad: Is the question of receiving compensation, apart from compensation to the band and held in common by the band, an issue that could or should be addressed? Is it acceptable to any people you know, or is it a preferred option?

Mr. Bryan Hart: Well, I think Norway House Cree Nation deserves to be compensated for what has happened, and I do believe that Norway House Cree Nation is best to determine that compensation. But my presentation isn't so much about the monetary compensation. I want to make that clear.

• 1005

Mr. Derrek Konrad: But that's what my question is about.

Mr. Bryan Hart: Right, but maybe you can direct that question to somebody else here.

My concern is based on the issue of the rights of the party in Bill C-56.

The Vice-Chairman (Mr. John Finlay): Mr. Bryden.

Mr. John Bryden: I was here when Warren Allmand testified, and he was one of the architects of the Northern Flood Agreement. One of the things that struck me was that the context in which that agreement was cast was significantly different from society today.

When you talk about the fiduciary obligation of the crown, you're really talking about Parliament. It's not the Queen; it's Parliament, as represented by the people here. Parliament in turn is reflective, through our democratic process, of the thinking of contemporary society.

I just seek your reaction to this. One of the things that struck me was at the time the Northern Flood Agreement was cast, it appeared to have been cast with some ambiguity and somewhat imperfectly. Perhaps because Mr. Allmand is such an idealist it was cast in broader strokes than it would be if it were created today.

Don't you feel, if we don't resolve this, time will actually work against the people who were party to that agreement? There can be two interpretations: it is a treaty or it is not a treaty. As long as there are ambiguities in it and contention with respect to what it was really giving away, isn't time actually working against the people you represent? Shouldn't we be trying to get this behind us now?

Mr. Bryan Hart: If we're talking about idealism, ultimately and ideally this has been a long time coming. We waited 20 years, and we still haven't achieved any honourable implementation of the Northern Flood Agreement. In fact, what we're seeing today is its termination. If Warren Allmand didn't actually use those words, I believe that's what he certainly spoke of.

You mentioned the fiduciary obligations of the crown and Parliament and everything. I think it's convenient to raise that question on behalf of the government. Maybe as a Liberal MP it's very convenient to ask that question and say we've waited so long and perhaps it's to our disadvantage to raise these issues today and go back in time for something that is right, that maybe ideally we believe in. It is very convenient for a government official to say that to us because the Government of Canada has done nothing else but dishonour the Northern Flood Agreement.

I'd like to refer to the testimony in 1994 of Allan Ross when he was chief of Norway House. He talked about this obstruction. He talked about how the Northern Flood Agreement committee, the group representing the five bands at the time, was subject to a divide and conquer approach by our fiduciary—the crown, Parliament.

I'd like to also bring everybody's attention to the Nielsen Task Force report of 1985. It was an internal document that was not made public. It clearly said that between the years of 1977 to 1983—you're talking about five years—the Northern Flood Agreement bands were underfunded on a per capita basis. At that time, first nations in Canada received $25,000 per person of regular band program funding.

The five Northern Flood Agreement community bands, Norway House included, received $10,000 per capita of normal program funding. That is clear evidence of duress, of impoverishment.

So your question, John, is very convenient, and I think I've answered your question.

• 1010

Mr. John Bryden: I think you've misunderstood something, because you should know that standing committees are standing committees of Parliament, not standing committees of the government. The only person here who actually represents the government is the parliamentary secretary.

I sit on this committee to try to find solutions to the problems people have with legislation, so I don't speak for my government. You will find from the line of questioning between myself, Mr. Konrad, Mr. Bachand, and Madam Hardy, that we're all trying to find answers to help you. The difficulty is something wrong happened in the past that has led to confusion with respect to what the heck the Northern Flood Agreement is and what it promised. We're trying to resolve that in Bill C-56.

I take your point that you have some concerns with respect to the MIA and the environmental assessment. These are real issues.

I think I've run out of time, but I will certainly look at what you have said there and consider whether or not changes are necessary in the legislation. We're talking about legislation now and about people here trying to find solutions to your problems.

The Vice-Chairman (Mr. John Finlay): Thank you, Mr. Bryden.

Mr. Bachand.

[Translation]

Mr. Claude Bachand: Mr. Hart, thank you for your presentation. Like you, I tend to think that the Northern Flood Agreement is really a treaty. Courts of justice say that aboriginal treaties in Canada must be interpreted very broadly, very liberally, and very openly.

Would an amendment to the legislation be a solution? It could stipulate for example that anything concerning the bill and which must be interpreted should be interpreted based on the Northern Flood Agreement rather than on the master implementation agreement. It seems to me that this is the fundamental purpose of your presentation. I fully agree with you, because we received several letters and heard several presentations on this issue. These indicated that the impact of the master implementation agreement was that the Northern Flood Agreement was put in mothballs, with the government ignoring the important promises made in this agreement.

Do you think it would be a good thing to modify the bill we are reviewing so that, if there were interpretations or arbitration, we would refer to the Northen Flood Agreement rather than to the implementation agreement? Would that be a good solution?

[English]

Mr. Bryan Hart: Thank you for your question. I think the biggest issue here is the need for further information and examination on the issue of treaty. That issue precedes any other issue. I agree there's a big difference between the implementation of a contract and the implementation of a treaty, because the highest court of Canada has ruled on how the fiduciary, the crown, is obligated to carry out its obligations under a treaty. It's not the letter of the word, it's the spirit of intent in what was agreed to. It's a very key issue.

I can recommend many amendments to this bill. Some might be perceived as being very unrealistic. There is one thing I'd like to see as an amendment if this bill is intended to pass and proceed, regardless of what I say here today or anybody else says here today. I would like the government, the parliamentary secretary, to be very honest in this issue of Bill C-56, part 1.

I would recommend to the parliamentary secretary he see to it there is a clause that says “We have been shameful in honouring the Northern Flood Agreement. As fiduciary of the first nation, as a trustee of Norway House Cree Nation, with all our fiduciary obligations, we have been very dishonourable to the people of Norway House Cree Nation. But with that, we're going to recommend the passing of part A of Bill C-56.” That's my recommendation.

• 1015

The Vice-Chairman (Mr. John Finlay): Thank you, Mr. Hart.

Mr. Iftody.

Mr. David Iftody (Provencher, Lib.): First of all, Mr. Chairman, on travelling here yesterday—for the record, since Bryan seems to want to talk about these things—I was sitting in business class in seat 1C, and right beside me was an Indian chap, a full status musician, who was going to visit Phil Fontaine. So I don't accept the witness' proposition that somehow we are unequal. In fact, I've known Vince for 20 years, and we're good friends and we're all equal. So to start with, getting that on the record is important.

I don't know where to begin here. There are a couple—

The Vice-Chairman (Mr. John Finlay): You don't have too long, so....

Mr. David Iftody: I appreciate that.

There are a couple of matters. Bryan, your language is intense as usual. From my meetings with you I've come to know how intense you are. I appreciate how you feel about this, and I mean that with all sincerity. For the record, I had a meeting with the witness at the Sheraton Hotel. We shared a breakfast together. Also, I received Andrew in my office in Steinbach. I've previously heard from both of the witnesses.

Since meeting with them and having a deeper look at the information before me, I can say that I'm far less certain about the representations made by the witnesses. I'm not trying to expunge their integrity in terms of what they believe. I know them both to be very committed to their own process, and I understand and respect that. But I think on some facts they're simply wrong.

Getting back to Andrew's point, Mr. Chairman, in his own testimony he states on page 2 that he received moneys from the Northern Flood Agreement payouts, he says some time in the mid-1990s. He goes on to say that he was laughed at by some of his friends. I'm not quite sure what was going on there. But the point I'm making, and by his own testimony about receiving the moneys, is that it's not correct to suggest that the money was paid out exclusively as a sort of bribe to vote yes in the second referendum, which is an allegation that has been made by a number of witnesses, and I suggest wrongly.

I'm holding before me—and I've showed this to both Mr. Russell and my good colleague and friend, Mr. Allmand—the actual fee payment schedule, Mr. Chairman, that was drafted in the early parts of this process. It authorizes payments under section 10.7.2 of $300 on December 22, 1994, which I think is the payment Andrew referred to, and another one on December 20, 1995. This could have been the one he was referring to. But the point to make is that two payments were made and received long before the referendum. They were not exclusively tied, as the witnesses have said, to the referendum process. In fact, there was a payment of $500 made after the first failing referendum. It was all laid out in this schedule that was agreed to long before this process happened. So those are incorrect facts that need to be established in terms of having proper debate.

The other thing, of course, is the issue of the Cree ballots. We've had varying interpretations of this, but we were told—and we can call witnesses, and I am seeking further verification of this, Bryan—about actual Cree ballots being there. We'll get that information, of course. This was brought as an affidavit to Justice Muldoon, and as you know and you properly cite, Bryan, the judge felt that the process for carrying out the referendum was properly adhered to.

So we have a number of questions here that are important.

One, were there or were there not Cree ballots?

• 1020

Two, the other substantive question is, was there a bribe of some sort, something immoral or untoward going on that the members of Parliament here should identify and have a duty to protect through honour and so on? Be honest, as you've said, tell the truth, and so on. We've seen here, of course, in the schedule of payments that it was laid out long before the referendum occurred.

The other issue is the the legality of the referendum, and I think Judge Muldoon has addressed this. Those are the three main points that keep surfacing.

They're important facts, because, as I said to Professor Russell, it's upon those facts, Bryan, that this whole other house of disrepute, as you put it, is being built, and we are now alleged architects in this process. With all due respect, I understand precisely where you're coming from; I feel very sad that you're unhappy about this, and I mean that sincerely, as both Bryan and Andrew have represented so far. But I think we're just absolutely wrong in the facts, Mr. Chairman.

The Vice-Chairman (Mr. John Finlay): Thank you, Mr. Iftody.

I don't want a long comment, Mr. Hart. He didn't ask you a question. I'm going to Ms. Hardy, if she has a question.

Ms. Louise Hardy: In terms of the Gathering Strength document the minister put out last year, how do you see this whole process fitting into this new vision of partnerships, working together and negotiating rather than litigating? That's the first part.

The second part of my question is, what are you going to do after this? My sense is this bill is going to pass. We had a fellow last week say “We're going to just do this and that's what we're facing.” So what's your next step?

Mr. Bryan Hart: Thank you. To answer your first question, Gathering Strength is a very interesting document. It talks about how a certain era has passed in dealing with first nations people and how we have embarked on a new one. I would say that Gathering Strength is just mere words in Norway House, because what we're talking about here is the continued dispossession of lands and resources from first nations people. Part A of Bill C-56 is going to implement major provisions of what has been called the master implementation agreement, and it's all part of the past history that the minister said is in a former era. To answer your question, I think the Gathering Strength document is just mere words in Norway House.

As far as the second question is concerned, this issue is not going to go away. I don't intend to leave here and go on a European vacation for two years. I plan on taking this thing to audiences to bring attention to these issues to the best of my abilities, and I won't be alone. I'll be joined by other concerned people. So I think it's in the best interests of this committee to really examine some of these issues. Thank you.

The Vice-Chairman (Mr. John Finlay): Thank you, Mr. Hart.

Are you prepared, Luke?

Mr. Luke Hertlein (Band Member, Norway House Cree Nation): I suppose I am.

The Vice-Chairman (Mr. John Finlay): Give it a try and we'll see. The chair is tempted to make a lot of comments, but I'm going to save them until the very end.

Mr. Luke Hertlein: Okay. Thank you very much.

The Vice-Chairman (Mr. John Finlay): You can go. It will get on the record anyway. Excuse me for interrupting.

Mr. Luke Hertlein: I'm going to edit my presentation because we have gone through a number of things already, and I didn't know what my friends were going to be speaking about. I've also, however, sent you guys and women a number of documents, probably copious amounts of documents as I've quickly written something up and sent it off. So when I'm talking, it's with those documents as background.

By way of background, I was adopted twice when I was young, once at the age of three and again at the age of ten. I found my biological family after completing my law degree, and I finally met them when I moved back to the reserve in 1996. I have not been involved in any of the court cases against the chief and council that have been referred to in previous presentations to the committee, but I have had the opportunity to see firsthand what happened in the community concerning the NFA and the MIA.

• 1025

I have become somewhat familiar with the technical aspects of the NFA, the MIA, and the bill, but I am in no way an expert in this area, noting the number of lawyers and consultants that have been involved in this saga. I am here today as a band member and Canadian citizen who is concerned about this bill.

Bill C-56 is a bad piece of legislation, particularly part 1. I will confine my submissions only to part 1. However, I have provided you with comments concerning part 2, noting among other things the interplay—and I think it was already discussed on a previous day—between the MIA and the TLE and third-party interests, questions that I have. I don't even know what's going on with that.

Bill C-56 should not be passed for a number of reasons, reasons you've heard in previous submissions and which I have provided you in recommendations. I am not going to try to restate other people's presentations, but I would like to state that I support the previous presentations made to you that identified the bill as fundamentally flawed because it is based on a democratically tainted process. I also support previous presentations made to you that identify the bill as terminating aboriginal treaty rights, both in terminating NFA rights that have been identified as treaty rights and terminating Treaty No. 5 rights.

I would like to take this time to comment on the contents of this bill, the process leading up to it, and some comments concerning the decision of Justice Muldoon.

With regard to process, as a band member who voted in the referendum, I can state that for the vote on the reserve the ballots were not provided in Cree. And I believe I did not see our friend present at the ballot box or the poll. Since the ballots were provided only in English, and I guess it's sort of my word against other people's word, or our words against other people's words, I would like to see the standing committee actually obtain those facts with regard to what the ballots looked like, where the ballots were when they were voted upon.

I'm going to talk about some procedural difficulties, which have already been mentioned with regard to the change in the MIA to hold another referendum. There's also, as I understand it and as I have interpreted it, a financial incentive on the part of chief and council and possibly the legal counsel that informs or provides legal advice to chief and council to vote yes. That included $500,000 that was only payable to legal counsel in the event of a yes vote. You can check that out with regard to article 13.11.1. The wording might be a little bit clearer if somebody explained that part to me.

The offering of money to vote prior to the vote had also led to similar financial situations, arguably creating a concern and a coercion of people to actually vote yes, with the possible outcome that if there were a no vote, what would actually happen to the moneys that were already received and were planned on being received? I would like to suggest to the standing committee that they find out exactly what would have happened in that particular situation.

I believe you have received information with regard to the denial of some NFA payments. About 150 band members were denied their NFA payments when they were involved in the Federal Court action. A decision was subsequently changed with regard to that. Perhaps as a direct result, a number of people dropped their names from that Federal Court action.

In terms of content, I would like to state that I do agree with the aboriginal justice inquiry report that the NFA is a treaty. I think when dealing with the NFA, as was discussed earlier, the federal government ought to err on the side of caution and recognize its fiduciary duty.

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I think it's ironic that while we're talking about whether this is a treaty or not, that it's vague, or that there's a possibility of interpreting it one way or another, it has been only 20 years since the creation of the NFA. The second part of the bill deals with the much older document that we are only now implementing through the treaty land entitlement process. That process took a long time and arguably was much clearer or more vague—it's irrelevant. The fact that it took so much time and that it's also attached to this bill is something I wanted to highlight.

In my presentation on page 3, I have briefly gone through provisions that are outlined in the NFA and what the MIA actually does. I can walk you through those and put them down for the record, but I know that my submission is already part of the record. These provisions were already discussed earlier. So I won't do that. We can go back to that.

There has been a comment that the MIA creates some sort of accountability in regard to the implementation or the alleged implementation of the Northern Flood Agreement. This is probably something that was alluded to or discussed earlier in regard to what chief and council represent. I'm not here to bash chief and council, but if we are going to be talking about democracy, government, respect for the local government, respect for inherent right and self-determination, and the implementation or the alleged implementation of self-government, I think it's very important to take a look at the accountability of leadership.

Concerning comments in regard to the court case, I think this has already been discussed. I wanted to try to point out that I did have the opportunity to be in the court room at the time this case was being argued, and I think there is probably—as there is with the Northern Flood Agreement—some misinterpretation as to what Justice Muldoon said and what he had considered. I think if you are going to be looking over his decision, you should perhaps also take notice.... I can arrange for you if you want to get the transcripts and documents that were actually presented to him. I think that would put some clarification on whether he actually addressed the fiduciary obligation of Canada and the issue in regard to treaty rights, in addition to the judicial notice of the lack of Cree ballots.

The fact that the decision does not talk about the lack of Cree ballots—and that I didn't see any Cree ballots when I voted—is, I think, an easy way for the standing committee to take a look and get some facts.

In conclusion, we've heard that the MIA supposedly stands on its own without Bill C-56. The MIA supposedly does not fail if the bill is not passed. You should just simply keep it that way. Do not use the legislative process to legitimize a very sullied process. I recommend you do not pass this legislation for the reasons I provided you on March 1, 1999. However, you have heard evidence from two opposing perspectives. After listening very carefully to what has been said, it looks like you need to put something through in regard to Bill C-56. I would like to propose that you just delete part 1 altogether and pass part 2, in regard to the omnibus nature of the bill.

• 1035

However, I would also like to provide you with two additional recommendations. One is that the standing committee continue to investigate this matter and obtain all the correct and relevant facts. It's been suggested already that you do that. The second is that the standing committee determine if the NFA is fully implemented or if it is terminated and satisfy itself on the relevant constitutional questions concerning the impacts of the bill, including whether the NFA is a treaty, by a) instigating an independent review by hiring non-governmental lawyers to compare and contrast the MIA and the NFA; or b) referring this matter to the relevant organ of the United Nations to conduct an independent review.

Thank you for allowing me to make this presentation here at the national level.

The Vice-Chairman (Mr. John Finlay): Thank you, Mr. Hertlein. Could I ask you, for my benefit, to give me your second recommendation again?

Mr. Luke Hertlein: Yes. I have an additional copy if you want it, but I can read it out. It was that the standing committee determine if the NFA is fully implemented or if it is terminated and satisfy itself on the relevant constitutional questions concerning the impacts of the bill, including whether the NFA is a treaty, by a) instigating an independent review by hiring non-governmental lawyers to compare and contrast the MIA and the NFA; or b) referring this matter to the relevant United Nations organ in order to conduct such an independent review.

The Vice-Chairman (Mr. John Finlay): Thank you very much, sir. Are there questions?

Mr. Konrad.

Mr. Derrek Konrad: Thank you for one of the most complete presentations I've heard anywhere so far. I will be interested to follow this up. I think your recommendations are clearly set out. We certainly will be discussing that when we get back to our steering committee.

If Bill C-56 were to fail, or if part 1 were to be dropped and Norway House were to forge ahead without it, do you happen to know what the implications might be for other bands that have signed implementation agreements in the past?

Mr. Luke Hertlein: No.

Mr. Derrek Konrad: Okay. That would be uncharted waters.

A question that I've asked and asked, and intend to ask again, concerns something that is not in Bill C-56—how compensation is paid to individuals. It has been put to me by C-31 Indians that some of their rights or the compensation under the treaty land entitlement are inheritable. In other words, it was promised to your forefather and so on, and it should come down the line. Many people like yourself were raised outside of the Indian culture and have never taken part in reserve life. When the benefits flow to the band and are used on the reserve, these people don't get housing or they're denied educational opportunities and things like that. What's your view on providing an alternative method for people to take their entitlement or inheritable right under the Treaty Land Entitlement?

Mr. Luke Hertlein: I am not sure. You are talking about treaty land entitlement, but you are also referring to benefits that flow from living on reserves, including education and stuff. Are you asking a question concerning part 2 of the bill or—

Mr. Derrek Konrad: Yes.

Mr. Luke Hertlein: Okay.

Mr. Derrek Konrad: It's under the treaty land entitlement where.... Since the treaty land entitlement also refers to the MIA, in a sense, what is your view on having a clause that would enable people to take their entitlement but not have it a part of a band, in other words, take it as an individual, say in cash payout or land in fee simple, but not as a part of a band?

• 1040

Mr. Luke Hertlein: An individual right to a treaty right.

Mr. Derrek Konrad: To have benefit flowing from being a status Indian who is attached to a treaty.

Mr. Luke Hertlein: I had the opportunity to move back to my community in 1996. Even prior to moving back to my community, I had the opportunity to benefit, if you will, or exercise my rights that stem from the fact that I'm an Indian. I had my education paid for and whatever.

In terms of the question you're asking, I think that's an individual question for a community and an individual question for somebody who would be contemplating that. I would never be contemplating such a situation as I understand you are putting toward me, so I can't really answer that.

Mr. Derrek Konrad: But I have had people phone me. I had one person as recently as last week phone me and say “How do I get out of this?” I'd like to have the land or take it in cash, but I don't want to be a part of the band. In a sense, they want to sign off, to take their benefit and go. They are Bill C-31 Indians and there's a settlement close to completion, and they want to be able to take whatever flows to it, which will go in common, and take it and hold it in fee simple or sell out and continue their life somewhere else.

Mr. Luke Hertlein: I think that's a key word you've used in terms of “sell out”, and I would never advocate for anybody to sell out their aboriginal and treaty rights.

Mr. Derrek Konrad: You may not advocate it, but are you—

Mr. Luke Hertlein: I have no comment on that at all.

Mr. Derrek Konrad: Okay. Thank you.

Mr. David Iftody: Mr. Chairman, I want to say how impressed I am with the presentations made so far by the three individuals. I'm looking forward to Leonard McKay's intervention as well. Luke, I'm very impressed with your interventions and research—all of you, actually.

Luke, I wanted to say a couple of things. One is that I have a copy of the master agreement in front of me. You made a suggestion about the $500,000 paid to Duboff, Edwards, Haight & Schachter, which I guess is the law firm that was most intimately involved in the agreement. You made a comment, suggestion or allegation that the payment to this law firm was contingent on the people voting yea.

I'm looking at the agreement, under section 13.11.1, which you've instructed me to do, and the schedule 4, which paragraph 13.11.1 refers to, and I see nothing in the agreement at all that would suggest that it was a contingency payment. Do you have any additional information for the committee?

Mr. Luke Hertlein: What I brought up in terms of that particular article was the fact that there is a half a million dollars that is going to pay for costs incurred with respect to the MIA. I was perhaps suggesting to the standing committee to determine what that particular section actually does.

If you take a look at the band's financial situation at the time, if you take a look at what existed prior in regard to how costs were being shared by the various parties that were involved—Manitoba, Manitoba Hydro, and the Government of Canada—Norway House Cree Nation was not receiving, and perhaps I am totally incorrect, but I think it's something the standing committee could look into.... As I understand it, the costs were always shared and were always paid. They were never part of a final agreement or a final settlement. And there are years and years, I would imagine, of audit and explanations and bills and invoices that would explain how costs were paid prior to this particular section actually happening once a yes vote had gone through.

• 1045

Mr. David Iftody: Thank you. Wouldn't it have been prudent perhaps on the part of the community leadership in Norway House, given that there were some legal bills to be paid, to perhaps be up front with the people about what was actually written, the schedule of payment, to see that nothing was hidden and everyone was going to be aware of it, that it was going to be in the master agreement for all the public to see? They've named the law firm. You know the proponents in the law firm, the principals.

Isn't that perhaps one of the intentions, rather than being something of a subterfuge here?

Mr. Luke Hertlein: There is nothing hidden, because it is in the agreement. All I'm suggesting is that the costs previously were paid, but prior to the referendum or, arguably, because the MIA allows for a $500,000 payment to go through once a vote of yes was accomplished, it could have influenced my chief and council even to say, “We have some bills here; we need to make sure it goes through”, when before they wouldn't have had to worry about that because the costs were shared and were already paid.

Mr. David Iftody: I see your point.

I'd like to ask one small question of clarification, Mr. Chairman, with respect to the Aboriginal Justice Inquiry, that is, the comments quoted by Chief Justice Hamilton and Judge Sinclair at the time and their comments with respect to the Northern Flood Agreement.

I'm quoting from parts of the royal commission report, chaired, as you know, by former national chief, Georges Erasmus, and this is what he had to say about the Northern Flood Agreement. We've talked about it being a treaty and having specific points, and Bryan, in particular, said that we should use this as a template. When he was asked by one of the opposition members, he said, “This is where we should go; this is the beginning and the end of this process, this Northern Flood Agreement”. Here's what they said:

The NFA...has been the subject of much controversy (in many respects the agreement has become the model of how not to reach resolution), as its history has been marked by little or no action in implementation of NFA obligations and a long, drawn-out (and continuing) process of arbitration....

We've since concluded, Luke, that we've had almost 3,000 either individual or collective arbitration cases. Talk about lawyers being involved in this thing.

So my point is, Luke, that the royal commission, having reviewed the aboriginal justice inquiry report, having looked at that and considered its recommendation, basically is saying in their report that the Northern Flood Agreement is so poorly written and drafted it would be impossible to implement—and it has been impossible. We compare this, for example, against the Nisga'a treaty, which is clearly drafted, precisely spelled out, and much more precise.

Luke, would you comment on, for example, Chief Erasmus'—Commissioner Erasmus'—comments that this thing is an impractical working document? I'm quoting from a respected chief here.

Mr. Luke Hertlein: My first comment would be in regard to the Royal Commission on Aboriginal Peoples report. Our friend—she's not here—made mention of the Liberal Party's interpretation of the Royal Commission on Aboriginal Peoples report, Gathering Strength. Some analysis of this has suggested that perhaps the federal government hasn't been fully implementing the RCAP to begin with and that there are certain priorities the federal government has placed on the RCAP. There are some things that are not being addressed at all that come out of the 3,000 and more pages of what the commissioners were talking about.

• 1050

I think when you take an analysis that it may be a treaty or it may not, and now it's determinative because the RCAP says so, it's a little bit dangerous. The approach they are taking, or arguably the approach—I read that particular section a little bit differently from you—would then suggest that agreements that are somewhat allegedly hard to implement, that are hard to interpret, can be applied to my Treaty No. 5 as well.

As I mentioned before, it's ironic that this piece of legislation before you now is dealing with just one small aspect of my treaty rights that it has taken over 100 years to implement in this part 2. So I am not sure whether just because somebody says in a report that the Liberal government—I guess it's my Liberal government too—

Mr. David Iftody: Yes, that's true.

Mr. Luke Hertlein: That the Liberals have decided to interpret it to be strengthening it on one hand, but perhaps not necessarily on the other. I think the approach needs to be arguably left up to the courts to decide and approach in the tests that the Supreme Court has laid out with respect to interpreting treaties and also implementing agreements.

The Vice-Chairman (Mr. John Finlay): Thank you.

Mr. Bachand.

[Translation]

Mr. Claude Bachand: Mr. Hertlein, thank you for your presentation.

Treaties are often said to be practicable because of the way they were drawn up. What I notice in the numbered treaties, as in the treaties under Section 35 of the Constitution, such as the Northern Flood Agreement—because I consider it is a treaty—, is that governments always say it is impracticable when the time comes to meet their fiduciary obligations. However, it is very practicable, for example, when the time comes to collect millions of dollars generated by natural resources or hydroelectric projects. While they say they are not able to meet their fiduciary obligations towards you, Manitoba Hydro continues to make hundreds of millions of dollars of profits each year.

I often try to bring correctives to this, although it is not easy. There may be impracticable things in the Northern Flood Agreement. However, one aspect that is certainly practicable is Section 16, which deals with development planning, and more specifically with community development planning. We did not talk enough about this here today.

At that time, they had to set up a major community plan for all five communities. I am told that the people in these five communities are not rolling in money. Again, the government did not meet its fiduciary obligation, even though it had signed this document. It was designed to implement measures to help people get out of unemployment and overcome their social problems. Absolutely none of this was done.

I would like to have your opinion on this, because in my mind, we did not talk enough about the state in which aboriginal communities are, some 20 years after the signature of this treaty. The government was not even able to meet the fiduciary obligations signed at that time.

Are there provisions in the master implementation agreement that at least try to correct what has not been done for 20 years? This seems to worry a lot of people. Some people say that some obligations have not been met by the treaty, and that we will now have an agreement that does not even include these obligations.

Finally, I would like to know your opinion on the following issue. What are the impacts on the communities of the hundreds of millions of dollars made by Manitoba Hydro? What state are the aboriginal communities in today? Did they benefit from the fiduciary obligation stated in the Northern Flood Agreement adopted 20 years ago?

• 1055

[English]

Mr. Luke Hertlein: I think there are probably other people who are better equipped to answer that question. I would like to suggest that there are, or there have been, negotiations arguably based on the entire Northern Flood Agreement, but that is something the standing committee could look into. I don't have that information off the top of my head or in some documents. I am not sure whether we could provide you with something like that today, but I wouldn't mind being able to perhaps furnish you with some information soon.

The Vice-Chairman (Mr. John Finlay): Madam Desjarlais.

Ms. Bev Desjarlais (Churchill, NDP): You mentioned—and it was mentioned by the first speaker, Mr. Clarke—something in regard to the fact that when the voting took place, the ballot was not in Cree as well. We've now heard it from someone who voted on the reserve and in Winnipeg. Sir, surely there must be copies of those ballots available as proof. We like to think that everything gets destroyed after an election, and sometimes it's indicated. But are there copies of the ballots available? Were they furnished through Indian Affairs or through the first nation?

Mr. Luke Hertlein: I have a ballot that was for the second vote, and it is in English. The question is shorter than the one on the first ballot that was provided and it was also in English. I am not sure we have a copy of it—and by “we” I mean the people here. I haven't really talked to anybody, so I'm not sure if anyone has it, but I could certainly give you a copy of this ballot here.

Ms. Bev Desjarlais: Are you aware of whether the ballots were done up through Indian Affairs or were they done up by the council? Do you have any idea?

Mr. Luke Hertlein: I don't have any direct information in regard to that.

Ms. Bev Desjarlais: I'll try to see if we can get that from Indian Affairs.

I have another short question. In your presentation, you say:

150 Band Members were denied of their NFA payment until they denounced their participation in the Federal Court action, raising questions as to whether the principles of natural justice have been respected in this matter.

You may have mentioned this in your presentation—if so, I apologize—but in what way were they denied? We did hear from a previous speaker that everyone received the payment, that it was part of the agreement that they had to receive the payment. You have an exact number here: 150 band members. Do you have the list of the 150 band members, and in what way were they denied? Were they told outright that they couldn't have it?

Mr. Luke Hertlein: On the first aspect with respect to the list, we have the names of the people who were involved in the court case. Also, my number might be incorrect. There might be more. I wasn't part of the court case itself, so I can't provide information to you in terms of direct evidence, but I can arrange for that.

There were 186 band members. I believe the standing committee has received some information with regard to that. If it hasn't, I could certainly get information from the community.

Ms. Bev Desjarlais: In what way were they denied the payment? Were they told outright? Was something sent in writing? What happened? Did they request the payment, only to be told they couldn't have it?

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Mr. Luke Hertlein: There was a list of people who were on the court case. On the reserve, they went to pick up the money down at the multiplex—I don't know what happened in the city—but there was a list of people who were entitled to receive it and those who were not. I know of people who told me they were denied. But I'm not sure how you want to do this, because I wasn't somebody who was directly denied. If we could indulge the standing committee, perhaps we could have an opportunity to ask everybody that question.

Ms. Bev Desjarlais: I just really want to get it clarified. Obviously, it's in your presentation, and it has come up before that people were denied. I just would like to know exactly what was said to them when it was denied. In here, it's very specific: “until they denounced their participation in the Federal Court action”.

When we were given the information by Indian Affairs, I was of the impression that there was to be an understanding that if there was any lawsuit filed afterwards, this money would be deducted. I think we were therefore given the impression as a committee that everybody got the money on request. If there are specifics of people being denied that money outright, I think it's very important, because the Indian Affairs representative definitely indicated to this committee that everybody had the right to that money, and that the money would be deducted from any lawsuit that there might be later on. I didn't take that as meaning part of this Federal Court action, but rather as part of a lawsuit related to damages incurred by the flooding.

Mr. Luke Hertlein: There were people who were directly denied when they went to pick up their payment. Later, perhaps—and I'm not too sure with respect to everybody on the court case—some had received moneys. Many people also had to sign affidavits taking their name off the list when they were going to pick up the money.

Ms. Bev Desjarlais: Thank you.

The Vice-Chairman (Mr. John Finlay): Thank you very much.

Mr. Bryden, a short one.

Mr. John Bryden: Can you play devil's advocate for a moment and give some suggestions as to why so many people support the master implementation agreement?

Mr. Luke Hertlein: First, one should take a look in regard to what the requirements were with respect to the voting. I call it a double majority. I think some people have referred to it as a triple majority. The majorities of the majority needed to actually have this thing go through. Every voter actually counted, and though it seems like there were a lot of people who were voting in favour of it, there were a lot of people who were exercising their right by not participating in—

Mr. John Bryden: That's not the question.

Mr. Luke Hertlein: You're making the assumption that there are a lot of people. I'm saying that at the—

Mr. John Bryden: No, it's not a lot. That's not the question.

The Vice-Chairman (Mr. John Finlay): Excuse me. We've had the vote count, Mr. Hertlein, and the vote count shows that the majority of those who voted...as you just said, triple or double, that's what the question is.

Mr. John Bryden: Forget how many. Why are people supporting it? We could have their testimony here, but we don't happen to have it because we have sought people who are opposed to the master implementation agreement. So tell me why, in your view, so many people actually do support it and still support it.

Mr. Luke Hertlein: For one, there was money attached to it, and you've heard about that particular aspect. Two, in a 400-plus-page document with a lot of legalese, I'm not too sure whether people actually understand the content of the MIA.

You have received the smaller version of this, the guidebook. This is the guidebook that was actually presented to the people of Norway House. It starts out talking about money. It's glossy, it's made in colour, and it looks appealing to the eye. The technicalities—and forgive me for going into the technicalities, but they are very important—are not spelled out in here. But it looks great.

It's also not provided in Cree. It's only provided in English. Most of the “consultations”—and I put that in quotation marks—that actually took place were also held in English. Any technical questions asked were not provided by the chief and council, but by their lawyers and consultants, in English. When you take a look at the consultation process, people said “I understood I would get money if I voted yes”.

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Mr. John Bryden: If I understand it correctly, it was basically ignorance and money that drove people to support the MIA.

Mr. Luke Hertlein: I'm not calling fellow band members ignorant. I'm saying they were ignorant of the technical aspects of the agreement and the things that were buried within the MIA.

The Vice-Chairman (Mr. John Finlay): Thank you.

Mr. Bachand.

[Translation]

Mr. Claude Bachand: Do you know what happened to the ballots of the first and second referenda? I hope they were not destroyed. Where are they now? Do you have an idea?

[English]

Mr. Luke Hertlein: No.

The Vice-Chairman (Mr. John Finlay): Ten seconds. Thank you very much. We're doing very well.

Thank you, Mr. Hertlein.

Mr. Luke Hertlein: I have something here from a freedom of information request. The INAC officer was supposed to destroy the ballots, according to a document entitled Ratification Timeline and Tasks obtained through a freedom of information request. If you want, we can provide you with a copy of this.

The Vice-Chairman (Mr. John Finlay): Thank you very much.

We'll move on to Mr. McKay. He's been most patient. We're only a few minutes over what we said we would do. Carry on, sir.

Mr. Leonard McKay (Band Member, Norway House Cree Nation): Thank you for inviting me. I'm a band member from Norway House and I live in Norway House. I am presently on welfare and have been on it for about four years.

I was there from the start to the finish of this whole process. I have given you a 41-point brief that outlines a few things. I was hoping perhaps some questions could be asked on those points, but I want to just address the issue of consent. I think it was mentioned briefly by someone here.

In terms of consent, the way we have normally done things has been through public band meetings. That's how we've done business for as long as I can remember. I can only remember two band meetings where some aspects of the NFA were mentioned. One was on November 28, 1994; the other was in December 1996. Those are the only ones I'm aware of that I participated in. There were other meetings, but they were not classified as general band meetings where decisions are made. We have customs that pertain to those kinds of items.

There was a lot of misrepresentation regarding how the MIA was advertised. There was only one way; there was no option. The NFA had its own, but the parties were not willing to do that; they were not willing to say here it is. The good faith was gone. One side of the story was fooled. We've tried a number of times to tell the other side. It's in my brief. My brief has the history, if you would just read it, of what transpired from October 1994 to September 1997.

The other thing regarding misrepresentation is that the guidebook says nothing in the MIA alters anything. That's the fancy guidebook that was flashed before you. This particular document I have was flashed in the community. The document we voted on said “draft”. That's what we voted on. In this document it says, “not attended”. This is what the people had. They didn't have all of this. I asked for this, but it wasn't passed around.

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Was there a voting problem? It became a voting problem when the MIA lost. What would have happened if they had won? Would there have been a voting problem? But it became a problem.

Money was used as a tool. It is not compensation when it starts to be used as a tool. There are several instances where this happened. It was used at the December 1994 meeting so people could get money at Christmastime. All these things were around Christmastime when people needed money.

In 1995 when the authority was asked for, they said, “If you give us the authority, we'll give you the money”. The northern stores provided money for the 1996 payout because the band did not have any money and people wanted money. The MIA in 1997 was used as a tool. They said “If you vote this way, you will get the money”. Welfare advances were produced between July 29 and August 4 because people didn't have money. The MIA had failed, so where were they going to get the money? There were a lot of people on welfare who wanted money.

In the 1989 per capita distribution—I think it was mentioned, and it is always mentioned—the people were asked “Do you want houses for the $3 million that has been received, or do you want per capita payments?” We could get may 50 or 60 houses at that time for $3 million. Because another community wanted money, our people wanted money. They were running around with this petition. I think somebody mentioned that in three hours they had 800 signatures.

The same thing happened between July 29 and August 5. People wanted money. They were told “If you want your money, sign the petition”. Some petitions were blank, but they asked “Do you want your money? It's right here. You can get your money.”

There was the suppression of any opposition. There were threats in 1995 at the meeting: “If you don't withdraw your name, or if your name appears on the court docket, perhaps you will not get your money, or you might be taken to court.” In the time before the December meeting took place, we had 450 members plus their families. When it was announced that the people could be threatened, we lost 95% of our members.

There was nothing we could do regarding radio and TV. We made a tape, but it was never aired. One of the councillors came and took that tape. I wrote letters trying to get it back. It was never aired because the chief and council, as the political body, had control over the radio station. I wrote letter after letter to the CRTC to correct the problem. They did not. I even tried to get community meetings at the multiplex. We were denied. We were even willing to pay, but council said no meeting would happen when we were there.

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As far as the treaty status is concerned, it was requested in 1996 through the negotiators, through the legal counsel there. There was time for them to get that. We asked, but they refused to do it.

In terms of the crown, the honour of the crown was thrown out the window. There was no faith, there was no belief, in the honour of the crown. I have information that you should read regarding the honour of the crown. Indian Affairs provides its own guidelines on policy on the honour of the crown.

As for the question in terms of what could be done in resolving the MIA and the fact that we must settle it, it was settled in 1977. They just did not want to implement it because it would cost too much money for them. My letter to you a year ago provided some clues as to what happened. We have I don't know how many thousands and thousands of papers that one could go back to.

In terms of confusion regarding the mine—I think Mr. Bryden mentioned that—there was no confusion on the part of the band. The document had been signed in good faith, they were expecting compensation, and they were expecting the rules to be followed. There was no confusion there, but there certainly was a lot of confusion on the part of other parties—lots of it. There were denials. There were refusals. If you care to read it, I have some of that evidence here. You just have to take the time.

Thank you.

The Vice-Chairman (Mr. John Finlay): Thank you very much.

Mr. Konrad.

Mr. Derrek Konrad: Thank you very much, Mr. McKay.

The other day, during our first meeting on Bill C-56, the question was posed about whether everyone had received a payment. Later in the afternoon, one of my staffers took a phone message from someone—I can't remember who it was—stating that he knew some people who had not received payments. I see that's still an issue. Have any people come forward with affidavits stating that they have not received a payment because of their opposition to the MIA?

Mr. Leonard McKay: I don't need an affidavit. I'm one of the ones who hasn't received it.

Mr. Derrek Konrad: Well, for someone to say something, but then say it under oath is just another matter, that's all.

Mr. Leonard McKay: Check the records.

Mr. Derrek Konrad: Where is the record? Do you have it? Of course, you don't have a cheque for—

Mr. Leonard McKay: Check the band office. I don't know.

Mr. Derrek Konrad: I have another question for you regarding the per capita payments. In your point 40, you said you used a mini-recorder to tape a speech by Councillor Fred Muskego in which he suggests that payments be withheld. Do you have that tape?

Mr. Leonard McKay: I have the tape. I have the written transcript.

Mr. Derrek Konrad: Do you have it here?

Mr. Leonard McKay: Yes, I have the written transcript here.

Mr. Derrek Konrad: Could I get a copy of it, please?

Mr. Leonard McKay: Yes, you can.

Mr. Derrek Konrad: All right, thank you.

I have another short question. How long were you in possession of that great, huge implementation agreement prior to the vote being held, as opposed to the little guidebook?

Mr. Leonard McKay: The guidebook was issued around June. I didn't get this until two weeks before the MIA, and that was only because I asked for it.

Mr. Derrek Konrad: Okay, so how long would you have had to read that prior to the vote?

Mr. Leonard McKay: Well, it's pretty thick.

Mr. Derrek Konrad: Yes, but how many days before the vote did you get it?

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Mr. Leonard McKay: You'd probably need two years for that.

Mr. Derrek Konrad: Yes, but how long did you have it prior to the vote? That's what I'm asking.

Mr. Leonard McKay: For myself?

Mr. Derrek Konrad: Yes.

Mr. Leonard McKay: Two weeks.

Mr. Derrek Konrad: Thank you.

Mr. Leonard McKay: You're welcome.

The Vice-Chairman (Mr. John Finlay): Thank you.

Mrs. Karetak-Lindell.

Mrs. Nancy Karetak-Lindell: Thank you.

Since I've been on this committee I've been trying very hard to understand treaties. As an aboriginal person of Canada, a lot of times you deal with what concerns you in your own area, so I had never had the opportunity to really be in contact with treaties. Fundamentally, I think those of us on this committee have to understand what a treaty is in order to understand a lot of the submissions we hear here.

When I listen to all the briefs—and that's why I waited until the very end; I wanted to hear all the briefs in order to try to understand where you're coming from. I'm sometimes at a loss as to what constitutes a treaty. One of the problems is that the NFA is not being interpreted in the same way by different people.

I guess this is more a comment than a lot of questions. Also, in a way, I guess I'm talking to myself to try to get a summary of what I understood today, in order to compare it to what I have as a Nunavut beneficiary. Our land claims process took about 20 years also, so I'm trying to compare this to how we approached our land claims process consultations at the community level.

Again, not understanding English was a big issue with a lot of the people there, but the approach we took was that we had negotiators on our side and that their role was to explain it all to everyone who was going to be part of the agreement. I can honestly say that there are probably people who don't understand every element of the agreement, but they agreed in principle and relied on the judgment of the elected people who represented us to say that this was a good deal for us.

Everyone can always argue the level of consultation. I'm trying to understand that, but to understand it, I need to know some statistics. We get a lot of briefs. A lot of the time, though, we don't get very many fundamental facts. I need to know how many people live in Norway House. What percentage of the people there do not understand English and are unilingual? I guess those are two questions, so that I can understand where you're coming from a bit more.

Mr. Leonard McKay: How many people live in Norway House? There are roughly about a thousand who live outside Norway House. There was a comment made that there were 5,500, so I imagine there are roughly close to 4,000 who live on the reserve.

Mr. John Bryden: There are 4,000 in Norway House?

Mr. Leonard McKay: No, outside Norway House.

Mrs. Nancy Karetak-Lindell: Oh, outside Norway House.

Mr. John Bryden: There are 1,000 in and 4,000 out?

Mr. Leonard McKay: Yes.

Mrs. Nancy Karetak-Lindell: Okay. Again, not understanding treaties, who are the people who can vote then?

Mr. Bryan Hart: You have it backwards, Leonard.

Mr. Leonard McKay: There are 4,000 in Norway House, on the reserve, and 1,000 outside Norway House.

Mrs. Nancy Karetak-Lindell: Oh, okay.

Mr. Leonard McKay: Well, you were asking for something approximate.

Mrs. Nancy Karetak-Lindell: To also understand this, when you say Norway House, I guess you mean the status people with Norway House when you give me those numbers.

Mr. Leonard McKay: Right, yes.

Mrs. Nancy Karetak-Lindell: Were those the people able to vote?

Mr. Leonard McKay: Not all 4,000 voted.

Mrs. Nancy Karetak-Lindell: But were they able to vote?

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Mr. Leonard McKay: No, out of the 4,000, some were children. There were 2,800 eligible voters, including those outside the community and those inside the community.

Mrs. Nancy Karetak-Lindell: So of the 2,800 people, approximately what percentage do you think were unilingual Cree and would not have been able to understand the MIA?

Mr. Leonard McKay: I don't know about the ones living outside. I imagine some of the older people who lived outside and left, who were part of Bill C-31, perhaps wouldn't have understood it. Certainly a fair amount of people didn't understand it.

It's not an issue of understanding the way; it's understanding what's inside here. I speak English and read English, but I have a hard time understanding this. A lot of our people have graduated from high school, but they didn't have this. They had that little guide book that had the questions and answers right there; it was easy for them. But in terms of understanding it in their language.... The old people said “This is going to be a good thing. You will have benefits. You will have money.” In that sense perhaps they understood, but they didn't understand the full explanation—not even the ones who spoke English.

Mrs. Nancy Karetak-Lindell: I'm going to use a personal example in trying to understand what happened. My parents are unilingual Inuit. I can tell everyone here they do not understand everything that's in the Nunavut Land Claims Agreement. But they relied on someone like me and some people in our family who told them, “I feel comfortable that we are going to benefit from this agreement.” So they relied on my advice that the agreement was good and they could sign or vote for it.

Maybe there weren't enough people at the community level who could explain it, not only to the elderly but to the average people in the community, who might not understand. I can honestly say I don't always understand everything myself. If I look at Bill C-56, all the legal language in there is pretty tough to understand. I'm a new member, but I don't know if even after ten years as a member I would be able to understand every legal sentence in a bill. But we get the general understanding of it from the different briefs and from hearing witnesses.

Do you feel there weren't enough people able to sit down and pass that information on to someone like you, if you were not able to access it, or even if you got it?

Mr. Leonard McKay: I'll give you an answer in this fashion. When the NFA was signed, not a lot of people understood it. We had a lot of people—I think one gentleman mentioned the lawyers circuit at one point. Perhaps it would be a good idea to call two people—our former negotiator and our former consultant. I could provide the names to the chairman if he so wishes. Maybe they would be able to offer a better explanation and compare what the NFA did and what the MIA did. But there must be other questions these people could answer.

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[Translation]

Mr. Claude Bachand: Mr. McKay, when there is a referendum, there are obviously people in favour and people against. I would like us to make a list together of those who were in favour and of those who were against. Did the band council recommend to vote in favour at the referendum?

[English]

Mr. Leonard McKay: I would say yes.

[Translation]

Mr. Claude Bachand: Was the band council unanimous in recommending to vote yes at the referendum?

[English]

Mr. Leonard McKay: Yes, I can categorically say that, because I was present at that one meeting in October where that very issue was mentioned.

[Translation]

Mr. Claude Bachand: Right. And I imagine that the department officials who came to the community were also in favour of a yes vote.

[English]

Mr. Leonard McKay: Of course, they were the ones who wanted to run the referendum. They asked for that referendum.

[Translation]

Mr. Claude Bachand: The question I want to ask is the following. According to you, why did the band council want the yes to win at this referendum? Up to now, one can ask what this has brought to the Norway House community aside from a few thousand dollars per person in compensation for what was done with the Northern Flood Agreement. What objective do you think the band council had in supporting the yes side and in asking the community to do likewise?

[English]

Mr. Leonard McKay: They honestly felt it was a good agreement—it would implement the agreement—but a very extensive modification of the NFA, with only limited phrases introduced from the NFA in terms of mercury, adverse effects, or unknown, unforeseen...those kinds of things.

[Translation]

Mr. Claude Bachand: You spoke of threats. Were the people who made threats in favour or against?

[English]

Mr. Leonard McKay: Do you mean the ones making the threats? One would assume they were in favour of the MIA. I was the recipient of threats on two occasions.

[Translation]

Mr. Claude Bachand: It seems to me that making threats is antidemocratic. Usually, when threats are made, it's because the stakes are very high. Do you think the stakes were high enough in this referendum for groups to make threats?

[English]

Mr. Leonard McKay: Yes.

[Translation]

Mr. Claude Bachand: What were the stakes, according to you?

[English]

Mr. Leonard McKay: Re-election—the federal government could get away with a small amount of money—$19 million, with $16 million for the province. I think hydro's amount was $35 million.

So if they paid off those little amounts, compared to what the actual value of the NFA would be.... We're talking about a lot of money. What's $1 billion in French? I don't know; it's a lot of money in Cree. I imagine in government circles it is a lot of money, considering what Mr. Martin says, a lot of money.

So the stakes were high. Re-election was very definitely a factor. People wanted Christmas money.

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It's funny you should ask that. Between 1989, when the first per capita payment was made, and 1994, there was a five-year lapse where nothing happened in terms of per capita payment—nothing. It only became an issue starting in 1994 when you had to sell the MIA. You had to sell it. The government was paying its share to get to a specific objective. They said let's get this thing by whatever means possible, because, as in France, it's lots of money.

The Vice-Chairman (Mr. John Finlay): Thank you, Mr. McKay.

Mr. Leonard McKay: You're welcome.

The Vice-Chairman (Mr. John Finlay): Mr. Bryden.

Mr. John Bryden: I have a couple of points. Of the 2,800 eligible voters, how many people read Cree, approximately?

Mr. Leonard McKay: A fair number of the old people read Cree. You see, there's a difference—

Mr. John Bryden: How many it is, though? Are we talking about 100 or—

Mr. Leonard McKay: Well, how many people speak French in Canada?

Mr. John Bryden: Actually, we have a figure—

Mr. Leonard McKay: I know, it's the same thing with us. A lot of people speak—

Mr. John Bryden: No, but who reads Cree?

Mr. Leonard McKay: A lot of people read Cree. Let me tell you this. It was because of that one issue of speaking and understanding Cree—the language factor—that the government and the religious organizations took away our language to a large degree. We went to residential schools—just a minute, because I want to answer this—and they took away our ability to communicate effectively and know in both languages what we were saying.

Mr. John Bryden: The issue here is, because documents weren't translated into Cree, did this deny people the opportunity to understand what was going on? I go back to my colleague's question here. How many people were denied the ability to read or understand the documents because they could not read them in English, they could only read them in Cree? How many people could not read them in English but could only read them in Cree?

Mr. Leonard McKay: I don't know. If I could go into each person's mind in Norway House—

Mr. John Bryden: But you've lived in Norway House for many years. Do people read Cree?

Mr. Leonard McKay: Yes, they do.

Mr. John Bryden: Do they read Cree and not English? This is what I'm trying to understand.

Mr. Leonard McKay: Yes. They read Cree. You should hear them on Sunday when they preach. There's a Cree Bible in Cree syllabics. It's there. Jim is evidence. Back in the early days we spoke Cree but we didn't read it. He was the one person who said, “Here's the possibility of understanding your language in written form.”

Mr. John Bryden: I appreciate very much and sympathize very much with wanting to preserve one's language and culture. My colleague just across from here would emphasize that very much.

But what's at issue here is the fact that documents were available only in English. Did this significantly deny people the opportunity to understand what was going on? If you can answer yes, that's fine, but give me some sort of idea. We're talking about 2,800 people, so is it 100 people, 10 people or 300 people? Just give us sort of an idea.

Mr. Leonard McKay: I'll give you a two-part answer.

Some of the aspects of the NFA that was originally written were in Cree, but that was never produced in Norway House.

The other thing is the draft MIA we voted on specifically said it would be in Cree syllabics. The Constitution says specific things. It doesn't say this is what's going to happen, and then turn around and not do it.

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In terms of numbers, perhaps there are 100, perhaps there are 200. I don't know. But there are certainly a lot of people who—

Mr. John Bryden: Who are unilingual—who can read Cree but not read English, or French for that matter.

Mr. Leonard McKay: Yes.

Mr. John Bryden: Thank you.

The Chairman: Thank you very much.

Madam Desjarlais.

Ms. Bev Desjarlais: First of all, you indicated that there had been an announcement that people would be threatened. Was that related to the meeting that you taped? Was that where that announcement...?

Mr. Leonard McKay: Yes, that is what that was in relation to. What that involved is this. When the ballots were counted on September 23, there was an announcement by one of the councillors, who said “Our lawyer is recommending we withhold payment for people who signed on the court case.” The MIA hadn't been signed. This was their legal independent counsel who was recommending this.

Ms. Bev Desjarlais: And which councillor made that statement?

Mr. Leonard McKay: Perhaps I can write it for you.

Ms. Bev Desjarlais: It's a fairly—

Mr. Leonard McKay: It was in a public forum. It wasn't—

Ms. Bev Desjarlais: It's a strong statement, and so—

Mr. Leonard McKay: Yes. Councillor Miskago. He read the letter right before us.

Ms. Bev Desjarlais: And it indicated that the lawyer made the recommendation that these people should be denied payment.

Mr. Leonard McKay: Yes.

Ms. Bev Desjarlais: And it was denying payment based on not accepting the agreement.

Mr. Leonard McKay: No. It was denied because their name appeared in the court case.

Ms. Bev Desjarlais: In the court case, okay. There also was an indication of other threats and things happening. Were there ever any charges pressed against anybody in regard to any of the threats or anything like that?

Mr. Leonard McKay: There was one incident, and I imagine it'll be brought up again, when there were charges laid by the RCMP on a group of people who wanted to air their opinions on radio. They were charged, but the charges were never pressed. They were not withdrawn. I imagine the RCMP were sent there by Chief Ron Evans, because they suddenly appeared. And there were some councillors present at that particular encounter.

Ms. Bev Desjarlais: Were there any other announcements that happened throughout the community, either pro or against? Did that happen on a regular basis through the community channel?

Mr. Leonard McKay: No. It was very one-sided. It was their newspaper. We couldn't access the radio station, because council had control of the radio station and the television. We tried. We honestly tried. It's not for lack of trying.

Ms. Bev Desjarlais: Were there announcements made over the radio or television in regard to denial of payment? Did that ever happen?

Mr. Leonard McKay: I imagine that December 1997 was one time. It was the most prevalent because it was done over radio and television.

Ms. Bev Desjarlais: What was stated then?

Mr. Leonard McKay: That was the thing I mentioned regarding withholding of payments.

Ms. Bev Desjarlais: So that did happen over radio and television.

Mr. Leonard McKay: Yes.

Ms. Bev Desjarlais: Okay. In regard to the number who speak Cree, as someone who's lived in northern Manitoba as part of an urban community, but has experienced and dealt with numerous people from a variety of communities, I will attest to the fact that if there is one community that has had the advantage of being able to continue with their language and syllabics.... As you indicated, because of the Rev. Evans putting the Bible into syllabics, there are more people in Norway House, and probably the older people, who would probably know Cree and stay more within their language. They have had that opportunity, where other communities haven't.

So I imagine there would probably be sufficient numbers who would have known only Cree, especially the older ones. I think it is important to recognize. Norway House is somewhat different from other communities in that regard, as other communities are just trying to encourage and bring back syllabics. As well, I believe Norway House for a number of years has had Cree instruction within their school, while other communities have not.

• 1145

The Vice-Chairman (Mr. John Finlay): Thank you very much.

Mr. Leonard McKay: May I say something?

The Vice-Chairman (Mr. John Finlay): You may certainly make another comment, sir.

Mr. Leonard McKay: Again, I re-emphasize this. It would be in your very best interest to recall our former negotiator and our former consultant here. I guarantee it would be in your best interest. If you want to know the name, it's your privilege. It's up to you, but I don't know....

The Vice-Chairman (Mr. John Finlay): Maybe, Mr. McKay, you'd leave that with the clerk for us, please.

Mr. Leonard McKay: Okay, that would be fantastic.

I do have lots of backup evidence on my 41-point brief.

The Vice-Chairman (Mr. John Finlay): Thank you.

Mr. Leonard McKay. You're welcome.

The Vice-Chairman (Mr. John Finlay): Gentlemen, speaking on behalf of the committee, we appreciate very much your coming to visit us this morning and your adhering as much as you could to the timelines I imposed. I appreciate that.

I'm usually not the chairman, so I usually get a chance to say something. I don't want to make a speech, but I do want to say to you that there's no one on this committee, and no one I know in any of the parties of Parliament, who denies the slowness of making agreements with our aboriginal people. None of us deny the abuses of the past.

I sat here and had a fleeting glimpse of déjà vu. I sat in the chair Mr. Bryden is in, and I listened to the former grand chief of the AFN, Ovide Mercredi. And when you were speaking, I said, “Bryan, my God, it could have been Ovide.” Now, if you consider that a compliment, fine. If you don't, you know better than I how you would take it.

With respect to the democratic process, I must make a comment. One of the bases of democratic government is its rule by majority—the people who get the most votes win the day. But I must say that doesn't always work out, because in the last election federally, the federal Liberals.... I personally got fewer than 50% of the votes in my riding, but I am still responsible to represent the people in my riding, and that is true of very many members in the House.

You will also know that in the last provincial election in Quebec, the Liberals got more votes than the Parti Québécois. The process has ridings and parties and so on, but that process has grown up over a long time. It started about 1066—not as far back as you go, I admit, and maybe your process of consensus....

We listen with interest and we understand it is a process that works for you. I'm not sure we're ever going to get the modern world attuned to that process, because we're moving in the other direction. We're moving in the direction of “I'll mark the ballot”, or “I'll phone up and we'll take a poll and then we'll do something”—instant democracy. It's never worked properly, and I think your system is far more lasting, but we are saddled with the system we have and we have to work within it.

Thank you very much for coming.

We'll have a five-minute break before the next witnesses—but only five.

• 1149

• 1156

The Vice-Chairman (Mr. John Finlay): Ladies and gentlemen, we have with us, on behalf of the Manitoba Aboriginal Rights Coalition, Will Braun and Jack McLachlin, who claims that all McLachlins in Canada are related.

Are you speaking, Will?

Mr. Will Braun (Spokesman, Manitoba Aboriginal Rights Coalition): Mr. Bianchi, whose name was originally on the list, will be beginning. I think a name tag is being made for him.

Mr. David Iftody: Mr. Chairman, I have a point of order before we begin. With the previous four witnesses we took about three hours, and we have one hour remaining for the three members. I'd like to make a reminder to the witnesses and to the members that if we want to get into questions and answers much more quickly, which is the fruit of the discussion, then perhaps we could keep the presentations somewhat shorter, if everyone would agree.

The Vice-Chairman (Mr. John Finlay): Thank you, Mr. Iftody.

If you're going to make separate presentations, I'll hold the questions to less time in order to get to each of you, if that's your wish, or perhaps you want to all speak first and then have questions, whatever you feel most comfortable with. Ed.

Mr. Ed Bianchi (National Coordinator, Aboriginal Rights Coalition): I'll be very brief. I did not prepare or submit a brief for review by the standing committee, so I was not intending to make a long statement.

I'm here primarily as a representative of the national body of which the Manitoba Aboriginal Rights Coalition is a part. As you can see, my name is Ed Bianchi. I'm national coordinator of the Aboriginal Rights Coalition. We used to be called Project North. We've been around for about 25 years. We're a coalition of national churches and church bodies. There are currently 12 national churches represented in our coalition. We also have a number of network groups, community volunteer groups primarily, of which MARC is one. Our network groups are in every province across Canada. We also work closely with aboriginal organizations and aboriginal peoples in furthering the causes of aboriginal rights and aboriginal justice.

I just wanted to set the stage in that way for the presenters here from the Manitoba Aboriginal Rights Coalition and perhaps just very briefly say that this issue is of great concern to the Aboriginal Rights Coalition because we see it primarily as an issue of fundamental aboriginal rights and aboriginal justice.

Whether or not the MIA is going to be beneficial to the community of Norway House really is beside the point. The number one issue as far as the Aboriginal Rights Coalition is concerned is whether the aboriginal rights of the people at Norway House are being respected or ignored. People of Norway House are part of what's called Treaty No. 5. The people of Norway House negotiated the Northern Flood Agreement, as you know. Are the rights of the people at Norway House being respected in the process we're now referring to as the MIA?

• 1200

Just a few minutes ago the chairman spoke about what we might call failings or idiosyncrasies of the democratic system. Those idiosyncrasies—the fact that in some cases the majority does not rule and in other cases the majority does rule—are balanced in a democratic system by individual rights and freedoms. We have a Constitution that makes sure that the individual rights of people in our society are protected where you have a tyranny of the majority situation.

The aboriginal rights of the people at Norway House are also protected, and they are recognized nationally in Canada and internationally at many different levels. The Aboriginal Rights Coalition works to educate people about aboriginal rights and aboriginal justice and how aboriginal rights have been trampled on for generations.

Mr. Chairman, again if I can paraphrase your words, you said earlier that we all know about the injustices and travesties that have happened to aboriginal peoples in the past. I think it is more important that we don't forget about all the injustices and travesties that are happening to aboriginal peoples in the present, because those things are just an indication that what we have in Canada is a systemic problem that manifests itself in communities all across Canada in ways that appear in Norway House as the MIA, for example, and as the problems around the referendum and so forth.

So I think we have to keep in mind that this is an issue of principle and fundamental rights, and it is one that speaks to or is echoed in the report of the Royal Commission on Aboriginal Peoples, where the commissioners said that fundamentally what is required in Canada in order to start on the path of restoring some kind of justice is a new relationship between aboriginal and non-aboriginal peoples. It has to be a relationship where the two sides are equal, where there is mutual respect and responsibility, and where there is a sharing of resources and wealth.

I just thought I'd make those introductory statements to help you better understand what kind of group MARC is a part of.

With those words, I welcome any questions. It might be better to wait until the other two are finished. Then if you have any questions to direct to me, I'd be happy to try to answer them. I thank you again for the opportunity to be here today.

The Vice-Chairman (Mr. John Finlay): Thank you very much, Mr. Bianchi.

Will.

Mr. Will Braun: Thank you, Mr. Chairman. I'd like to greet the members of the committee and thank you for the opportunity to appear before you today. I will cover some of the material that appears in our written submission, of which I believe you have copies.

The Manitoba Aboriginal Rights Coalition has an historic connection to the Northern Flood Agreement. We are the successor to a group called the Inter-Church Task Force on Northern Flooding, of which Mr. McLachlin was the founder in 1973. This group held a public inquiry into the effects of the Churchill-Nelson hydro project on aboriginal peoples. That inquiry took place in 1975, and it was significant in the formation of the Northern Flood Agreement in 1977. As successor to that group, we feel something of a moral obligation to see that the NFA is implemented in an honourable fashion.

I should state that although we are in contact with various aboriginal groups, we don't claim to speak on their behalf in any way.

We believe the issues before us here today are a matter of concern for all citizens. As citizens and hydro customers, we believe we have a direct interest and in fact an ethical stake in these matters. We recognize that the hydro product was constructed and is operated by our governments and our public utility for our benefit, and we acknowledge that the inexpensive hydro power from the Nelson River is an NFA right we enjoy. Therefore, the integrity of the NFA implementation process reflects on our integrity and honour as well. If the power we use is obtained by unjust means, we feel we have a responsibility and a right to address that.

• 1205

I'll make a few brief comments about the ratification process, and specifically the role of the federal government in that process, and I note here four simple facts. Firstly, there were two referenda held on the same question within sixty days. Secondly, for the latter of the two referenda, the rules covering the criteria for approval were changed, increasing the probability of approval. Thirdly, on both occasions voting took place under the promise of a $1,000 payment to each band member upon ratification. And fourthly, all of the practices were administered, sanctioned and presided over by the federal government at its own request.

Quite simply, we find these practices unacceptable and unjustifiable under any circumstances. We cannot imagine how these sorts of per capita payments would not significantly influence voters. Appearances and evidence indicate that the changes in approval criteria served the objectives of the party that was administering the process. We have seen audiences gasp in disbelief and disdain when they hear about these practices administered by the federal government in these votes. These are not practices that we would ever accept in our own communities, and we do not consider the process administered in Norway House as one demonstrating a respectful manner in which to seek the sovereign will of a first nation.

Focusing on the master implementation agreement itself, we are concerned that the MIA does not constitute honourable implementation of the Northern Flood Agreement. The findings of the aboriginal justice inquiry in regard to the treaty status of the NFA have already been cited here today, and we share the view that the NFA is a covenant of trust and honour between two peoples. It is a framework for ensuring a respectful and equitable relationship between two peoples, the peoples at either end of the transmission line. From our faith understanding, we would affirm the frequently expressed aboriginal belief in the sacred nature of treaties. This notion of covenant is also central to our traditions as church people.

In a statement entitled “A New Covenant”, Canadian church leaders said the following:

Aboriginal rights are recognized in both international law and the historic documents in this country. We maintain, however, that the rights of Aboriginal peoples are not simply a legal or political issue, but first and foremost, a moral issue touching the very soul and heart of Canada.

In comparing the Northern Flood Agreement and the MIA, we would note the following: The NFA insists that concrete steps be taken to address all of the direct and indirect effects of the hydro project in a fair and equitable manner. The NFA provides a context and structure of ongoing opportunity for betterment. We understand the NFA as a relationship between two peoples, setting out a course whereby the parties can process into the future in fair and honourable ways. It's a broad and ongoing assurance that concrete steps will be taken to address inequity. And we also understand the NFA as reflective of the notions of fairness, justice and concern for fellow human beings embedded in the Hebrew and Christian scriptures.

While the master implementation agreement does maintain several of the NFA's ongoing provisions, it does not strike us as a structure or a framework for a relationship in the same sense as the NFA. In fact, it is our belief that the MIA constitutes a reduction and a restriction of NFA rights. The MIA states that nothing in the agreement is “intended” to alter aboriginal or treaty rights. Good intentions are fine, but we're not at all convinced that the MIA actually does what it intends to do.

We note that compensation is only one element of the Northern Flood Agreement, within a broader context of NFA rights. The NFA does not set any caps on compensation. At the heart of the NFA is a provision for addressing poverty and unemployment, and a provision for long-term community development. At the heart of the MIA are set amounts of compensation within a restricted legal framework.

We recognize that the MIA has benefited Norway House. It has benefited the community, and we fully endorse this. But our question then would be why the covenant of fairness and equity seemingly got lost in that process. The NFA provides the right to a means of subsistence, whereas the MIA provides the right to a delimited cash settlement. We would argue that the nature of the NFA is very different from that of the MIA. The crown parties in the MIA retain their open-ended rights under the NFA while the rights of aboriginal peoples are limited and capped. We would conclude that the MIA imposes new restrictions on the NFA rights and benefits of Norway House while the NFA rights and benefits of the crown parties remain intact and are in fact increased.

• 1210

We fear that the covenant has been broken. Is the MIA not a much better deal for governments, Manitoba Hydro, and ultimately for us than for the people of Norway House?

I'd like to make just a few comments on the give-and-take process between the aboriginal parties and the crown parties. In exchange for the flooding of their land, the Cree peoples were offered the Northern Flood Agreement, and with that the give-and-take was over and the negotiations were completed. Aboriginal parties have fully lived up to their NFA obligations. They have given all that they have committed to give, and it has indeed cost them dearly. Now it appears to us that when they want to receive fulfilment of their NFA obligations after 15 or 20 years of accumulated duress, they are then required to give up still more in order to receive. What they appear to be asked to give up are some of the treaty-like obligations of the NFA and some of the broad ongoing obligations.

In relation to the treaty he was under pressure to sign in Saskatchewan, Chief Big Bear said, “It has always been a poor choice: to hold out and starve—or eat and be cheated”.

Norway House seemingly had to choose between the MIA and non-implementation of the NFA, and that does not strike us as a good choice to have to face. We do not feel that the Norway House people should have had to give up any underlying rights in order to receive benefits under the NFA. They have already given up far more than enough.

In conclusion, we would urge the standing committee to delay a decision regarding Bill C-56 in order to provide time to investigate the effects the MIA has on treaty rights, on NFA rights, and on the ongoing viability of Norway House, as well as to investigate the facts of the referendum process. We feel that the people of the Norway House Cree Nation deserve better than the MIA, that they indeed deserve all the benefits they have received under the NFA, in addition to a sacred covenant of fairness, respect, and equity.

Our coalition is currently planning to reopen the inquiry that was held in 1975. This public inquiry process will not focus solely on the Norway House situation but will provide the opportunity for some public processing of that information. We hope that ultimately this public awareness will be to the benefit of the Norway House people and other affected communities.

I will conclude by restating the words of the Canadian church leaders: “We maintain...that the rights of Aboriginal peoples are not simply a legal or political issue, but first and foremost, a moral issue touching the soul and heart of Canada”.

Thank you.

The Vice-Chairman (Mr. John Finlay): Thank you.

Mr. McLachlin.

Mr. Jack McLachlin (Member, Manitoba Aboriginal Rights Coalition): I didn't know I was going to appear until I got here, but I am willing to respond to questions, and I can give some of the history, as I was part of the formation of the Inter-Church Task Force on Northern Flooding.

The Vice-Chairman (Mr. John Finlay): Thank you very much, Jack.

We'll now turn to questions. Mr. Konrad.

Mr. Derrek Konrad: I don't even know where to start.

You said that rights really are more important than benefits that might be obtained under this agreement. How do you see the Northern Flood Agreement? Do you see it as creating rights or enumerating rights that are already in existence? How do you see the MIA reducing them? I'm not talking here about universal rights such as life and liberty, things like that. I'm talking about other things you're considering under the Northern Flood Agreement. Can you clarify that for me, please?

• 1215

Mr. Will Braun: In the NFA there are the broad provisions for fair and equitable treatment and the goal of working towards the eradication of mass poverty and mass unemployment and specific provisions for community development planning and that sort of thing. Those are some of the rights that are broader than just saying we will give you a certain amount of money—

Mr. Derrek Konrad: But is community economic development a right or a benefit conveyed under an agreement? I'm struggling a little bit to figure out what it is you're really saying here.

Mr. Will Braun: From our perspective as hydro customers, as people at the other end who are benefiting from this project, we would understand the Northern Flood Agreement as setting out a framework for a relationship between two peoples where people who will be negatively affected by the project are in a sense co-beneficiaries of that project, where if we're benefiting from it, they should be as well. So it's setting up that kind of framework, which we would see as being fundamentally different from simply saying we'll give you a certain amount of money.

Mr. Derrek Konrad: Thank you.

The Vice-Chairman (Mr. John Finlay): Mr. Iftody.

Mr. David Iftody: I have a couple of questions. I know that while sitting in the committee room you were listening to the testimony. You raised many of the same points we're going to hear from some 30 to 35 people taking the same position as you are. But you may have heard the debate earlier this morning and maybe even read the transcript from others who were here.

We've been over the whole process of the problem with the referendum; there weren't any Cree ballots, or there was payment. We talked about the fee schedules that were laid out far in advance of the 1997 vote. In other words, we keep going back to these three points.

There are three issues that are continually raised in this discussion: Were there Cree ballots? What about the integrity of the referendum? Was the payment schedule in some way subversive? We have argued here and have put forward that in each one of those cases Justice Muldoon—I'll say it again—held that the referendum process was certainly legal. We have testimony and will present documents to show that the Cree ballots were there. I outlined this morning that payments were made long before the 1997 referendum. So based on those three rebuttals to the facts, how do you place your moral concern, as you say—and I want to use this phrase carefully here, which I think may be the proper one—on those three pillars of argument that for the past few days I think have been refuted? That's question one.

You talk about the rights and benefits flowing from the agreement, and I think it's an interesting point. For example, for the Crees in Quebec, what if the profits from Hydro-Québec and Manitoba Hydro go back to the Indian community? I think it's a reasonable proposition. Would you argue, though, that if Hydro-Québec, Ontario Hydro, or Manitoba Hydro goes bankrupt, in the same way the reverse is true, that if rights flow upstream, then liabilities can flow downstream? Manitoba Hydro just purchased Centra Gas, and if gas prices plummet and there are all sorts of problems and they go into a deficit, does that mean the people of Manitoba phone Norway House and ask them to send a cheque to cover the losses to their brokers at the New York Stock Exchange?

Mr. Will Braun: Perhaps I'll refer to the latter question first.

Looking over the 20-plus-year history of this situation, it's patently evident that Manitoba Hydro has benefited tremendously from the hydroelectric development on the Nelson River and that same project has had very negative effects on the Cree people. So something is not quite right there. That appears as a very simple injustice of fairly extreme proportions. So with regard to the question that if Manitoba Hydro had liabilities whether the Cree people should share those, I'm not sure I see that as particularly relevant to this situation. Our hydro rates in Manitoba are now subsidized by the poverty of the Cree people in the north, and this simply does not seem to be the way it should be.

• 1220

If I could respond to the first question regarding the three pillars you mentioned, I think what we have said today, as Mr. Hart mentioned earlier on, is that what is more at the centre of this is the matter of treaty rights. We would urge this committee to base its findings regarding Bill C-56 on a legal opinion of that matter, or perhaps several legal opinions coming from different sources on that matter. It seems to me rather precarious to proceed regarding Bill C-56 without such a fundamental piece of information.

The Vice-Chairman (Mr. John Finlay): Thank you.

Mr. Bachand.

[Translation]

Mr. Claude Bachand: As an introduction, I would like to say that it will never be possible to entirely compensate the first nations for what was taken from them. Just look at the profits made by Hydro-Québec and Manitoba Hydro.

These people will accept settlements of a few thousand dollars, while Hydro-Québec and Manitoba Hydro will continue to make millions, or even billions of dollars in profit. If Hydro- Québec ever had a deficit, I don't think it should send the bill to the Northern Québec Cree.

This is looking at history the wrong way, because fundamentally, land and rivers were taken from the aboriginals, they were parked in reserves, and now they are told they are going to get a few thousand dollars on Christmas Eve. The people are a little tempted. This is also important. The Indians are not the only ones who are tempted by money. We are, too. When you're offered a few thousand dollars, you tend to take it, specially when you're in a bad position like the aboriginals are. They are faced with terrible poverty.

If it can in fact be considered that, at the referendum, there was a sufficient number of votes—and I believe, Mr. Chairman, you made the connection a while ago with what happened in Québec or what happened in Canada with the Liberals being elected with 38% of the votes—, there are nonetheless other factors that may influence democracy. These people were in poverty, and they were offered cheques at Christmas and were told: "If you vote in favour..." I believe this can influence democracy.

Mr. Braun spoke of reopening an inquiry that he or someone else carried out in 1975. Who made an inquiry in 1975? Did I hear you say you wanted to reopen the 1975 inquiry?

[English]

Mr. Will Braun: Perhaps Mr. McLachlin could give a bit of background on that 1975 inquiry.

Mr. Jack McLachlin: Yes, thank you very much.

I will give you a little bit of the history. In the early 1970s, in 1973, we became aware of the tremendous problem that was developing in northern Manitoba. We became aware that many of the communities that have been named here were experiencing extreme difficulty and were going to. We also looked at the nature of the treaties, such as Treaty No. 5, and recognized that this treaty, along with other treaties in Manitoba, was a trade-off for all of Manitoba. We received Manitoba, they received these small pink pieces of land on the map.

In my touring of northern Manitoba at that time, I discovered that in one case a trapper was being paid $500 and another $700 for a trapline, another for a dock, another for housing, and so on. If there was an agreement in one community, then that could be used for an agreement in the other, and they were talking of $500, $700 or $1,000. So it became a question of divide and rule.

So another community development officer and I talked about this in Thompson, and we suggested that perhaps the five bands could organize under the Northern Flood Committee. It was out of that committee that the northern flood idea was born, but it was out of the great injustice that we saw developing, because hydro and governments, both federal and provincial, had all kinds of data about the nature of flooding, the hydro levels, the impact on the shoreline, which is the farmland of these people, and it was obvious there was going to be a profound dislocation in the future.

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We saw suggestions at the time that whole bands should be moved to southern Manitoba, to the Ninette sanitorium, which was later abandoned, but it was there. We also saw in another case where a small band in Gillam went out to their trapline, and when they came back, many of their houses had been bulldozed along with all their possessions. It was all this information that was simply not picked up by the press, or made available.

I hear you talk around here this morning about a new agreement. I have to say there is already an agreement. We worked in 1975 to assist the Northern Flood Committee to begin to set up an agreement.

For that agreement, I talked to Ed Schreyer and Sterling Lyon and other members of both the NDP and Conservative parties, and they agreed to signing it. My last conversation was with Sterling Lyon, and now.... So it was out of there, both the hearing and the impact it had on informing the public, that the agreement was brought about. It was out of the fundamental need for justice, and therefore I see the same thing developing in our own day.

In the mindset I heard expressed around here this morning, it's as if there is no agreement. There is an agreement, and we signed it; and I say “we”, because I am a part of that. I am a part of the white European people. We signed it in order that we could have the benefits that flowed out of it, and all of that was integrated as an integral part of Treaty No. 5. They cannot be separated.

I don't know whether that helps, but it gives you some background.

The Vice-Chairman (Mr. John Finlay): Yes, indeed.

Mr. Bryden.

Mr. John Bryden: Thank you.

We've heard and we know that the chief and council of Norway House supported the master implementation agreement. Would you have found that support acceptable for carrying on with Bill C-56 had that support existed without a referendum, bearing in mind that these were the elected representatives of the people who endorsed the master implementation agreement? Would the democratic process then have been completed, in your view?

Mr. Will Braun: I suppose my comment on this would be that it would appear to us the leadership of Norway House was in a position that perhaps wasn't the greatest position to be in, having signed the Northern Flood Agreement in 1977, and then had however many years of non-implementation of that agreement and the accumulated duress over that time, and then found themselves in a position of needing to come to some other agreement on that.

Mr. John Bryden: But the point is that regardless of why they did it, these were the elected representatives of the people and they endorsed the master implementation agreement. Is that not a fulfilment of the democratic process, setting aside the referendum? You didn't have to have the referendum, did you, in order to fulfil the democratic process?

Mr. Will Braun: I'm not entirely sure I understand the intent of the question.

Mr. John Bryden: It goes back to my colleague's question here earlier. She pointed out that in her various communities, aboriginal communities, certain leaders were given the responsibility for negotiating and understanding the terms of negotiating, and then reported to the people and action was carried out. And this in fact is the democratic process.

• 1230

I'm here as an MP to act for the people who voted for me because they are a little too busy and not as familiar with the issues as is my mandate. So I'm coming back to the point: has democracy not been fulfilled if the chief and council have examined the issue and told the people they endorse the agreement that's been proposed? You don't even need a referendum.

Mr. Will Braun: I think there may be perhaps two principles of democracy that one might comment on here. There is the aspect of majority rule of representation, and I think one also has to recognize that this has to go along with a fundamental entrenchment of basic human rights and so forth. If the majority votes, let's say in an extreme case, to exterminate the people of Cross Lake or Norway House because they're such a small minority, obviously that's a legitimate majority decision but it's not a legitimate democratic decision.

So I'd point out that one needs to have respect for rights as well as for the majority representation, and therefore our concern with the process here would be that there are some basic treaty and aboriginal rights that have been affected.

Mr. David Iftody: He hasn't answered the question.

Mr. John Bryden: I'm not getting where I'm trying to get to. Let me try it another way.

Referenda are always known as imprecise processes. This is why they're so rarely used in democracies, because people coming to vote rarely even understand the question. You're very lucky, even in the Quebec referendum—as a matter of fact that was the whole issue, it was about whether people actually understood the question.

Mr. Claude Bachand: It was a very clear question.

Mr. John Bryden: Indeed.

Coming back to the point, and we set aside the referenda, as I understand it, it was the elected representatives of the people, whose mandate was to understand the issue and recommend on the issue, who recommended favourably on the issue. Am I to understand from what you're saying that you know better than these elected representatives—and not only do you know better and do you challenge the fact that they have made a wrong decision, you're also saying that their decision is not the correct moral decision? Am I not right in assuming that you are setting yourself above the elected representatives of the people who are the elected chief and council of Norway House?

Mr. Will Braun: We're speaking only about the role of the federal government in this process. I'll defer to Mr. Bianchi on this one.

Mr. Ed Bianchi: I think you're touching on some very important points, but from the wrong side of the fence.

In partial response to one of the things Mr. Braun said, you said “regardless of why they did it”, but I think why they did it is the most important factor. I think what we're seeing in Norway House now with the MIA is the perpetuation of a process that started soon after the treaties were signed.

First nations were recognized as sovereign peoples with title to the lands they lived on, and since then what's happened in Canadian history—and if you don't believe me you can go to the Royal Commission on Aboriginal Peoples; the first half of the 4,000 pages talks about this kind of process—is that the Government of Canada, for whatever reason, has used a number of different processes to dispossess aboriginal peoples of their lands and deny them their rights.

Mr. John Bryden: But it's the chiefs I'm talking about. It's the elected representatives. I'm sorry, Mr. Chairman.

The Vice-Chairman (Mr. Derrek Konrad): Bev gets a word in next.

Mr. Ed Bianchi: Certainly I'm not denying that the elected representatives of the community are perhaps acting in what they see are the best interests of their people, but as Mr. Braun mentioned, they were not given much of a choice: either you take this deal that we're offering you or you just wait another 50 years, because we're not going to do anything with regard to the NFA that we said we were going to do 20 years ago. How would you, Mr. Bryden, representing your constituents, vote in that kind of situation when you're given the choice of either providing for your constituents or not providing for them?

Mr. John Bryden: I'll answer that. I'd vote my conscience, and what you're suggesting is that these chiefs and these councillors did not vote their conscience.

Mr. Ed Bianchi: No, I don't think we're suggesting anything of the sort.

An hon. member: Excuse me, we need some order here, Mr. Chair.

The Vice-Chairman (Mr. Derrek Konrad): We're going to give the floor to Ms. Desjarlais of the NDP.

Mr. Ed Bianchi: I thought we were finally starting to have a good discussion here.

The Vice-Chairman (Mr. Derrek Konrad): If we want to do another round, fine, but let's get through round one.

Mr. Ed Bianchi: We still have 25 minutes.

Ms. Bev Desjarlais: In your opinion, having probably dealt with a number of these types of situations and seen how Canadians assist other countries who are just learning democracy, and I know that Canada often offers assistance in that area, would the process that took place in Norway House withstand the scrutiny of a democratic voting process? Based on what we've heard, would the process that took place withstand?

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Mr. Will Braun: As I stated, I don't think any of us would accept that sort of process in our own communities. Just the other day I spoke with a woman who had been an official election observer in Central America, a Canadian woman, and I asked her—without giving her the context necessarily—whether these practices of the promise of a $1,000 payment and a repeat referendum with a changed criteria would ever be acceptable. She nodded her head, uttered a couple of expletives, and said, “Absolutely not. This just isn't the way democracy is done.” And I think Mr. Russell previously addressed that sort of matter as well.

Ms. Bev Desjarlais: Regarding the question of whether or not a referendum is necessary, has it not been the practice over the years in first nations communities to hold referendums because there has generally been an understanding that every person has a right to have a say in what happens with the community? Has that generally been the practice, that first nations will hold a vote on particular issues?

Mr. Will Braun: I'm afraid they would have to answer that for themselves. What we're concerned about is the fact that the federal government seemed to have a specific objective throughout this whole process, and they sought to garner the results they were after.

Ms. Bev Desjarlais: Yes, in this case. Actually it was pointed out by the research person earlier, when I queried on the ballots and who was responsible for preparing and putting the ballots, that it was Canada. This was Canada's part in this. They were in charge, and I guess I would look at them as being the chief electoral officers, so to speak, so the onus would have been on the Government of Canada, INAC being the department involved, to ensure that a proper democratic process took place. And if that didn't happen, the Government of Canada would bear the liability if there wasn't proper procedure found and people ended up having claims against the process by which they are losing what I believe would be the right of treaties.

Is it your impression that it is Canada itself, the Department of Indian Affairs and Northern Development, the Government of Canada, who oversaw how everything would take place and that it wasn't done properly?

Mr. Will Braun: As was pointed out earlier and is documented in our written submission, apparently the Department of Indian Affairs and Northern Development requested to administer or to conduct the vote.

Ms. Bev Desjarlais: The referendum. Okay. So was it their choice to have a referendum because they saw a need for doing that?

Mr. Will Braun: The appearance would be that, although I'm not sure how the decision came about to have a referendum as a way of deciding.

Mr. Ed Bianchi: But I think the important point is to go back to what Mr. McLachlin said and ask yourselves why the government pursued this process and this MIA when there was in fact an agreement already in place. Why go through all the trouble of doing this if you have an agreement already in place that was negotiated 20 years before? Maybe that's a valid question. I don't understand why we keep avoiding it. I think it's a good question.

Ms. Bev Desjarlais: I think it's probably a valid question, and I'm sure the people.... I have spoken to a number of people involved, and the speakers before indicated they also thought that probably the chief and council were acting on what they thought were their best interests. So I think we're at a point where we have to decide whether it was a democratic process, because I think, as we are elected representatives, we bring forth the wishes of our communities. That's fair enough. But if there's a process in place and we find the result has been brought about in an undemocratic way, I think it then does have a bearing on what happens.

Mr. Ed Bianchi: But where does the democracy start? Does democracy start with the imposition of a process that is unfair in the first place, and then you determine whether it's democratic? Or does it begin before that? If you really want to talk about democracy and what it means, you can't pick just one isolated instant in time and say, gee, we have to figure out whether it's democratic or not.

The Vice-Chairman (Mr. Derrek Konrad): Nancy, do you have a question or comment? Is everybody in favour of a second go-around? We'll allow it?

Mr. David Iftody: Yes. I just wanted to ask Mr. McLachlin a question, Mr. Chairman, if I could. I don't know if I want to....

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Sir, you mentioned you'd been involved in this process for a long, long time, and you mentioned Ed Schreyer and Sterling Lyon. It seems to me you had a great deal of personal experience in this process, and obviously you had a lot of discussions with the provincial people who were involved, and the NDP government at the time. I may stand corrected, but I think Professors Russ Rothney and John Loxley were involved as advisers to the premier's office at the time. I may stand corrected, but I had both of them as university professors in Manitoba at one time. And I have great respect for both of them.

When they were designing this whole thing in the early seventies, and Ed Schreyer and the NDP government were forging on, it was my understanding that at the time this was part of the NDP government's huge economic plan for Manitoba, that it was the template for renewal and hope for Manitobans when Mr. Schreyer came to power and they were forging ahead with this. Was that your understanding of the NDP policy at the time, and did you have some discussions with the premier, Ed Schreyer, about your concerns with respect to what was happening in the NDP policies in Manitoba at the time?

Mr. Jack McLachlin: You referred to the NDP quite a lot, but I want to say that I think it's a template for every government in Manitoba, that they—

Mr. David Iftody: They were the architects of this project.

Mr. Jack McLachlin: Yes, that's correct. It's my observation that it has generated immense wealth and therefore political power for Manitoba. I think you as a representative have benefited from that.

Mr. David Iftody: I have hydro dams in front of my house in Lac du Bonnet. I know all about them.

Mr. Jack McLachlin: Yes, but they're peanuts compared to what's in the north, with all due respect.

Mr. David Iftody: Yes, and my power is still too much.

Mr. Jack McLachlin: So we're talking here about a moral issue, that we have taken—

Mr. David Iftody: Mr. McLachlin, that's not my question. I asked you because you talked about your experience with this in one of your dissertations. May I, sir? I asked you if you had any representations with the government of the day at the time, and whether you expressed your deep moral outrage and concern about what was going on to anyone in the NDP government. That was my question.

Mr. Jack McLachlin: We expressed that with the NDP. We expressed it with Sterling Lyon—

Mr. David Iftody: Thank you.

Mr. Jack McLachlin: —and it went on down the line. But because it was immense, that is what is going on today. It's the same issue today, because there are many megadollars at stake. But my point of the moral issue is that we're not sharing even peanuts with the north. There is an agreement in place. It is there. It's said that it can't be implemented because it is fuzzy. But when you have the Quebec agreement, which is said to be built like a Swiss watch, you can't implement it because it's too detailed.

Well, it's obvious the issue is that there's not the political will. You don't want to implement it, so every time it gets delayed in more legal battles. It's a question of will, and behind that is the deep moral issue that we have a responsibility because I, as a white European, have benefited and my children will benefit because of what has happened here and the gift we have been given by the native people.

Mr. David Iftody: Thank you, Mr. Chairman. Thank you very much, Mr. McLachlin.

Mr. Jack McLachlin: Thank you.

The Vice-Chairman (Mr. Derrek Konrad): Mr. Bryden.

Mr. John Bryden: I just wanted to say I didn't mean to cut off Mr. Bianchi earlier on, because—

An hon. member: It happens all the time. Don't worry about it.

Mr. John Bryden: Okay. I'd like to finish our discussion if we could, and I'll begin by expressing that I have a deep suspicion about the efficacy of referenda because they're so readily manipulated and because so many of the people coming to a referendum are not familiar with the issues, for whatever reason, and are unlikely to be. I'm particularly sensitive about that because of course we as a country are faced with a referendum coming out of Quebec from time to time that is subject to the same type of manipulation.

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Now that I've said that, can you comment on the democratic process? If we set aside the referendum, was the process that existed, which at least had elected representatives supporting the agreement, fair democratically, or was there something else that needed to be done, other than a referendum?

Mr. Ed Bianchi: Again, you've raised another very good point. I hate to keep harking back to history and stuff, but it's where we come from at the Aboriginal Rights Coalition. We have to remember when we're talking about the elected chief and council at Norway House that it is an Indian Act creation.

When the government first made contact and negotiated a treaty with the people at Norway House, they weren't the people at Norway House. It could have been from a community of aboriginal peoples, but they did not make decisions in their community and communicate or interact with other aboriginal peoples through an elected chief and council, as recognized under the Indian Act. They had their own system of governance and system of making decisions, and so on.

So when we ask a community to make a decision based on an elected chief and council, we're asking them to adopt a foreign system, first of all. That foreign system may, in some cases, not reflect the natural decision-making process in that community.

You asked the gentleman from Norway House how many people in the community spoke Cree or read Cree syllabics and so on. If those people who only read Cree syllabics were the elders, and if the elders were traditionally the people in the community who guided and made decisions, by not having it in Cree syllabics you would be eliminating a crucial part of the community. By definition, you would be making it a less democratic process in the sense that everyone should have an equal share, an equal say, and everyone should be informed before a decision is made.

So we have to recognize that when we're talking about a decision made by the elected chief and council, that political body is, first of all, not always the traditional decision-making body that naturally, or automatically, represents the people in the way we understand an elected body such as Parliament represents the people.

Mr. John Bryden: Thank you for that explanation about the Cree syllabics. I didn't make that connection. That's a very sensitive and illuminating observation. I thank you for that.

Thank you, Mr. Chairman. Those are all my questions.

The Vice-Chairman (Mr. Derrek Konrad): Thank you, Mr. Bryden.

Ms. Desjarlais.

Ms. Bev Desjarlais: On the process of the elected chief and council and the fact it wasn't necessarily the way.... Due to the fact that aboriginal people, for a number of generations now, have been under the auspices of DIAND, or INAC, and the Government of Canada, a lot of the old ways have not been there, and a good number of the people have not experienced the old ways of having elected officials or have not been involved in a consensus process.

As women, we all know how we've evolved over time in Canada to have the democratic right to vote. All those things that I believe normally would have happened within aboriginal communities, the same way they happened in some of our communities, would have happened but were not allowed to happen because of the interference of white European culture. That's my personal perspective. I look forward to the day when we will see democracy operate fully, as it will within first nations communities as more people become involved and feel their involvement produces benefits.

I want to comment on the referendum process because, again, it was indicated by the research person that the referendum was a requirement under the agreements. So it absolutely must be seen as part of this whole issue, and I think it's crucial that we are assured that democracy and the democratic rights of everyone in that referendum were respected.

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I don't think we should be afraid of the fact that the people in Norway House, had they been given all the information, could have changed their decision. I do think we need to be assured that they were given all the information, though, and I'm not as convinced as I was at one time that this did happen, just because of some of the things that have come out in these hearings. But I'm not suggesting for one second that I don't believe the chief and council acted with anything other than the best interests of the first nation.

I'm looking forward to seeing how all this progresses, because I think there certainly are questions involved. Without getting into whether or not we share support for the new agreement, I think there was an intent to do what was best for the people of Norway House.

I just wanted to comment on the indication of a moral responsibility. It's not often that anyone is going to receive the benefits of cheaper power. Mr. Iftody commented on his hydro being cheaper. I can you tell that hydro is not cheaper for people in northern Manitoba, and it's right outside our window. That's the case for anybody, and certainly for first nations people. Rates are set on dense populations, so those in those communities often have higher rates than we do in the urban centres. To suggest that they benefit the same, then, is not accurate, because they actually really get the worst of it.

I don't believe there has been the sharing of liabilities. There's no question that the liabilities have all been on one side, that of the first nations people who have been involved in this whole process.

I want to thank you for your input on this. It's very important.

Mr. Ed Bianchi: There was no question there, Mr. Chairman, so I'm not sure of the protocol. Am I allowed to make a closing remark?

The Vice-Chairman (Mr. Derrek Konrad): You'll have to make it brief, because we're getting short on time.

Mr. Ed Bianchi: I'm always brief, Mr. Chairman.

I think the point is well taken when you say you want to make sure the people who cast their votes or made the decision had all the information. I think that's a very valid point. When you make that statement, though, I think the question is what you mean by “all the information”. I think it's something to take into consideration as well.

The Vice-Chairman (Mr. Derrek Konrad): All right, I want to thank you very much for staying to the bitter end. That goes to the witnesses, the MPs, and those of you who stayed to hear the debate. It has been enlightening, and it has given us a whole lot more to think about in the coming days as we consider Bill C-56.

I am adjourning the meeting.