CHER Committee Meeting

STANDING COMMITTEE ON CANADIAN HERITAGE

COMITÉ PERMANENT DU PATRIMOINE CANADIEN

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, February 10, 1999

[English]

• 1601

The Chairman (Mr. Clifford Lincoln (Lac-Saint-Louis, Lib.)): I'd like to declare open the meeting of the Standing Committee on Canadian Heritage to hear witnesses in connection with Bill C-48, An Act respecting marine conservation areas.

[Translation]

We have two witnesses.

[English]

Representing the Nunavut Wildlife Management Board, we have Mr. Michael d'Eça, legal adviser, and representing the Campbell River Indian Band, we have John Henderson, their chief.

To both of you, I am terribly sorry for the delay. We had some urgent business to clear up in committee in terms of future business.

Mr. Henderson, I understand you have a flight to catch.

Chief John Henderson (Campbell River Indian Band): Yes.

The Chairman: Then if it's okay with you, Mr. d'Eça, we will let Mr. Henderson go first.

Go ahead, and after that we'll have questions.

Chief John Henderson: On behalf of our treaty organization and the Campbell River Indian Band, I'd like to thank you for the opportunity to make a presentation today.

I would like to tell you who I represent. I represent actually the majority of those on the central coast on Vancouver Island and the surrounding territories. We cover a vast area. Everybody has seen the map that has been circulated. We have 560 members in our own first nation, and in total 2,000 for our treaty area.

I'm here today simply because of the effect of what will happen if this goes into place. I know it's written in Indian documents that, yes, first nations' outlooks are going to be looked after, and their visions are going to be looked after, but still, the issues of jurisdiction still remain.

We feel the jurisdictions of first nations people in the coastal communities are going to be affected. In that regard I've been involved with our first nation for 22 years and have been working toward a successful treaty process and something for not only my children but also their children.

I feel the situation is going to prohibit first nations people from being who we are and from surviving by that resource that has been provided to us. We've been involved with the treaty process, as I said, for many, many years.

• 1605

McKenna-McBride stated it in a lot of his remarks in the 1800s. You have one remark paraphrased in the document I presented, that, yes, first nations people never got large tracts of land; they got small tracts of land to survive by.

The marine resources in our territory are who we are. We're who we are because of the fact that our grandparents and their parents have taught us how to utilize those resources.

When you talk about salmon, shellfish, bottom fish—all are part of that marine resource. I've been a fisherman and still am a fisherman. The effect of what the Department of Fisheries and Oceans has done already, in that department, to our people—we don't need to have something now implemented that's going to drastically affect our lives again.

It's a sad situation when you look at the coastal communities and the situations they're in today. To be a member of a first nations people means your hands have been tied almost all of your life.

I'm going to jump all over the place because I'm short of time.

The proposed strategy could potentially expand into MPAs, and their management, which would significantly affect us. We employ, and we feel we share in the decision-making policies that have to be created. We want a voice. We don't want to be left out, because we are stakeholders in this.

If you look at the document, you'll see it has no-take zones. What does that mean to me and my people? Enforcement has been a problem to first nations people all along with regard to fisheries issues. We basically have no enforcement because we don't have that jurisdiction within our powers. So if this does pass and this land use management scheme goes through, what's in the Criminal Code that says first nations could prosecute somebody for infringing on our rights?

“Food, social and ceremonial purposes and other traditional practices” will be protected within that, it says, but what about commercial? We have bartered and traded and sold our goods on those tracts of land since time immemorial.

It also says, “managed in collaboration with aboriginal people”. I don't see where that is going to happen in this process unless first nations are sitting at the same table. On the other hand, if you look at aboriginal rights, which include commercial harvesting, that would be restricted.

This is an important issue here. In a no-take zone, no commercial fishing, marine plant or shellfish harvesting or aquaculture could be permitted. That's what it says. Even in the least-restricted areas, fishing practices may be highly restricted on a case-by-case basis.

I think it's important we all understand that we are who we are. We survive by that resource.

• 1610

In the establishing of Bill C-48, marine conservation areas or reserves will apply to public lands. These lands are under Canada's jurisdiction. I'm talking about our own reserves, and what it says. Our hands are tied as we speak. Do we need more laws that regulate us? I don't think so.

MCRs, MCAs—it's all part of the same package. Mineral extraction is prohibited. The economy of British Columbia is suffering today. I don't know where it's going to go if something like this is implemented.

I talk like this because we're a band that is going forward in economic ventures, with all kinds of joint partners, whether they be forestry, mining, or the building of shopping centres. Have you been reading the papers? We're one of the biggest developers of shopping centres across this country. We received an award for being the best developer in the country—first nations people.

So perhaps you can begin to realize our goals and objectives. We would like to have jurisdiction.

The Delgamuukw case, for those of you who have researched Indian politics enough, will undoubtedly have an impact on aboriginal rights and economic development activities by first nations in terms of mining companies and forest companies and those business ventures we would like to get into through the treaty process.

Everybody's scared of those words—“treaty process” and “treaties”. There's no need to be. We're there to try to benefit the province of British Columbia, not only native people but also non-native people.

The demands on the chief and council and the leaders of the coastal communities are becoming tougher because of the fact that everything has been tied to a tree. We can't take it down without taking the whole tree down.

You can't ignore what the Supreme Court of Canada said in the Van der Peet and Gladstone cases. It said aboriginal people have a right economically to make themselves a viable industry with whomever they want regarding fishing, and any other joint venture company out there as well if we see fit that we're going to work with those companies. I don't have to name them, but there are a number of companies we're working with at this time. That's one of the reasons I have to get back for a 9 a.m. meeting tomorrow.

We want to do a business venture with the City of Campbell River to build a cruise-ship facility in a joint venture effort to create tourism. This would restrict some of that because of the fact that we have to dredge to add onto a marina that already exists in front of our village, and that we own.

Those are the types of situations I have to address, because it's the future of our community.

We've negotiated in good faith in just about everything we've done. We've come forward and been open and honest. Look at what the Nisga'a agreement says, and furthermore, at what it's going to do to all of us. Surely there are some things that are going to have an effect in different ways, but the end result is that there are benefits on both sides.

As the court states, any infringement as part of the crown's fiduciary obligation must take into account that exclusive nature and priority of aboriginal rights.

• 1615

I stress that because that is the direction in which we are going. You know, in Delgamuukw, it addresses oil and gas and all those things that relate to commercial development of resources on their lands. It brings back the question of what I feel is really important, for first nations to participate at a level that's not as we are today but government to government. A true, honest, and good-faith relationship is the way to do business in this country.

We want to deal in a manner that is respectful of who I represent—our elders and leaders of our communities, and our past chiefs—and the directions in which we want to go to benefit and respect the interests of our children. We have a long history of issues that have happened over time to first nations communities that we would rather forget than bring back and remember.

As I said, what about enforcement? That's a number one concern. We now have fisheries officers who are trained and who can't pack a gun, who have the same enforcement powers as the person across the street. Why? We don't know. He can't go out and prosecute a non-native fisherman, but he can prosecute a native fisherman. Why draw the lines? That's why I say that if we're going to enforce this, what federal legislation gives us that right on our lands? There isn't any.

Thank you for giving me the opportunity to address this issue. If you've read the document, you'll know there is a resolution on the back of it. It's without prejudice to our treaty society that I, and therefore those I represent, am here.

Thank you for giving me this opportunity.

The Chairman: Mr. Henderson, thank you. You've made your point of view very clear, and I think very eloquently.

Tell me, just so we are aware, exactly what is your timetable? What time do you have to leave here so that members can be guided accordingly?

Chief John Henderson: I'm going to be, I hope, on a 6 p.m. plane. I don't know how long it takes.

Mr. John Godfrey (Don Valley West, Lib.): Are you ready to boogie?

Chief John Henderson: I just have to run up to the hotel and grab my bag.

Mr. John Godfrey: Then 5 p.m.

The Chairman: Can we keep you until that time, then?

Chief John Henderson: Yes.

The Chairman: Mr. d'Eça, what is your timetable? Are you staying here overnight or are you leaving tonight?

Mr. Michael d'Eça (Legal Adviser, Nunavut Wildlife Management Board): I can stay overnight if that's what we want to do, Mr. Chairman.

The Chairman: What were your plans, first of all?

Mr. Michael d'Eça: I actually live in Ottawa.

The Chairman: Oh, you live in Ottawa. Then that's fine. Do you mind if we question Mr. Henderson first?

Mr. Michael d'Eça: No, not at all.

The Chairman: We appreciate this.

Mr. Duncan.

Mr. John Duncan (Vancouver Island North, Ref.): Just for the committee's knowledge, Chief Henderson and I are from the same community.

Welcome to Ottawa. I spend a little more time here than you do.

The Campbell River band is very special, and they're an integral part of the thriving community of Campbell River.

I want to be brief. I know your time is short, and I want to hear what the other committee members' concerns are. I do have some questions, though, for clarity for members.

If I understood your presentation, you're not asking for amendments to this legislation; what you're asking for is no legislation. You don't like this bill, am I correct?

Chief John Henderson: That is correct. We either take it aside and redo it or restructure it, because the way it sits now, it doesn't work because of the effect it will have.

• 1620

That's why I say the consultation process has to happen. We are in the treaty process, and with Delgamuukw and what it says, we know from the Supreme Court of Canada that we have an opportunity to go forward and make an economic base for ourselves. That's a vast tract of land we're talking about.

Mr. John Duncan: There are other pieces of legislation already in existence, from other government departments, federal and provincial, that create marine conservation areas. Do you have a generic position on them or have you tried to deal with that in—

Chief John Henderson: Let's put it this way, John. There have been bills that have been put in place and protected areas that have been put in place that already have drastically affected the livelihood of our people in the commercial fishing grounds. As fishermen and first nations people, after consultation with DFO, we set aside and protected areas of weaker stocks. We did that ourselves. We told them what to do. But after we did that, it was stuck. They never took the boundaries off.

The bill was put in without consulting us, and then they turned around and used something we agreed to at one time and created the situation where they put a fishing boundary up and said that's a protected area, it's a fish sanctuary, when in fact that was a food-gathering area for our people for hundreds of years, and now it's not. We can't even fish for food in the area. It's gone. That's why we have this defensive attitude. It's because of the treatment we've received over the years that basically takes away those opportunities for our people to survive. We've seen the results.

We are negotiating in good faith not only in this area but also for lands. If you turn around and make parks out of traditional hunting grounds where we food-gathered for hundreds of years, where do we go? Our lives are being defined for us when we've been defining our lives and our history for hundreds of years.

Mr. John Duncan: In your deliberations on this bill, you've been aware of this legislation since November. Would that be a fair statement?

Chief John Henderson: Yes, but I looked at some material in August. I actually read some of the material when it first came out.

Mr. John Duncan: I think I probably talked to you in November.

Are you aware of what other groups on the coast of British Columbia are saying about this legislation as they become aware of it? I know that takes some time to occur.

Chief John Henderson: Let me inform you that today I'm speaking on behalf of 7,000 people, the whole coast, from Nanaimo to Port Hardy. I was to be at the Native Brotherhood convention in Prince Rupert today, but they sent me here. They told me I had to come here and voice my opinion on what's happening with Bill C-48.

So it's that important to us. The Native Brotherhood is one of the largest native groups that has ever been formed, and it has been in effect since the early 1900s. That group is voicing their opinion.

Mr. John Duncan: John, I know you know the groups on the north coast as well, in Prince Rupert and so on. Have they taken a position at this point?

Chief John Henderson: Yes. I talked to Ed Newman at length at the last summit committee meeting in Vancouver, and he supported the initiatives of the Campbell River Indian Band. The central coast did also.

• 1625

He feels there are opportunities—for example, the Gladstone case; that's his community—such as roe and kelp opportunities, and shore rights. As well, they're trying to get into an area of fish farming by first nations people, because the resources are changing, basically. Lifestyles are changing.

As I said, it's the JBs that are going to occur through the treaty process that are going to be affected. We would like to have the door open for us to create opportunities not only for ourselves but also for non-native communities.

Mr. John Duncan: John, I understand there's growing concern not just from your broader community, the aboriginal community, but also from regional districts, municipalities, and the oil and gas exploration task force and others. Are you aware of a movement in that direction as well?

Chief John Henderson: Yes.

Mr. John Duncan: Have you had any communication or cross-communication with those groups?

Chief John Henderson: Yes, we have. We actually sat down with them with our treaty organization about two weeks ago. As part of those discussions, we asked: How do we create a better environment for ourselves? How do we stay in business, basically—for instance, the development of tourism in conjunction with the development of mineral extractions—and be a part of it?

There are some situations that you don't see in other areas of this country, where municipal councils, such as the City of Campbell River, work hand in hand with the first nation in joint venturing and making those opportunities come forward. They helped us along in securing the opportunity to build a shopping centre, helping us to negotiate with the highways department and other sectors of the provincial government.

I think it's important that we all realize that the economy of this country... For example, the province of British Columbia is struggling. If we turn around and make the whole province not economically viable, who's going to invest money? Money is what makes the world go around.

The Chairman: Could I pass on to the Bloc? I'll come back later.

Mr. John Duncan: I'll conclude with a comment.

The Chairman: Yes.

Mr. John Duncan: John is a very practical entrepreneur, as you can sort of read between the lines here, and I think you should take very seriously what he has to say. He speaks for a lot of groups.

The profile of this legislation has been raised slowly over time on the B.C. coast. That may be what led to my colleague's earlier comments today, but I didn't know he was going to do that.

I'll pass on to you.

Thanks, John.

[Translation]

The Chairman: Mr. Bachand.

Mr. Claude Bachand (Saint-Jean, BQ): First of all, I'd like to congratulate Mr. Henderson. This is the first time we've met and you appear to be a very dynamic chief.

I hope that you can hear me. You're smiling to be polite, right?

[English]

The Chairman: He was just saying that you're a very dynamic chief, and you made a big impression on him.

[Translation]

Mr. Claude Bachand: I also have to tell you that I am very fond of your part of the country. I went to Campbell River four years ago for talks on the aboriginal fishery, as Indian affairs critic, and I was greatly impressed by Thunderbird Hall. Many aboriginals from Quebec were also in attendance. Therefore, I know that aboriginal peoples are concerned about fisheries and natural resources conservation in general.

I agree with you that aboriginal concerns are very much in the news in British Columbia today, particularly in light of recent Supreme Court decisions, specifically in Delgamuuk, and the activities of the British Columbia Treaty Commission.

• 1630

Now for my first question. You indicated in your submission that you are presently in Stage 4 of the six stages in the British Columbia Treaty Commission process and that the end result of Stage 4 will likely be an agreement in principle. You mention that in your opinion, the completion of Stage 4 will take a further five years. Are you saying this because the pace has slowed or are you merely estimating the time frame involved? That's my first question.

Secondly, you state in your submission that Bill C-48 should be put on hold and you propose an alternative. I'd like you to elaborate further on this point.

You state the following:

[English]

...or alternatively, that Canada undertake not to exercise any of its powers within Bill C-48 until the First Nations affected have given their full written consent.

[Translation]

Therefore, you're leaving the door open, because there may be some people who view the establishment of new marine conservation areas as an important step. You say that you don't object to these new conservation areas, but that it is important for First Nations to give their full written consent to the government. Are you talking only about reserve lands in this case, or rather about the lands that you are claiming as yours? I've looked at your map, and there is a substantial difference between reserve lands and the lands that you are claiming as your own. Are you trying to tell us that Bill C-48 should be put on hold insofar as it applies to all of the land claims in British Columbia?

[English]

Chief John Henderson: Was I supposed to understand that?

The Chairman: You didn't get the translation?

Chief John Henderson: I was on the wrong channel, probably.

Mr. Claude Bachand: You got it in French?

Chief John Henderson: Yes.

Mr. Claude Bachand: Do I start all over again, Mr. Chair?

The Chairman: Mr. Bachand, maybe you could summarize your questions.

Mr. Claude Bachand: Okay.

Listen. Two small questions. First of all, you said you were at the fourth step in the B.C. Treaty Commission process. You're saying it will take five years before the fifth step. Explain that, please.

Second, your argument here is to put Bill C-48 aside, or alternatively, don't exert any power until you have a written statement from our part.

I'd like to know if you apply that to land reserves or if you apply that to lands you are claiming, because there's a big difference.

Chief John Henderson: What we've stated in a lot of our documentation and in a lot of our discussions with the provinces as well as the Government of Canada is that lock, stock, and barrel, it doesn't matter. Whatever is in the boundaries our map represents is what we're negotiating for.

The Chairman: So your suggestion covers the whole land that you're claiming.

Chief John Henderson: Yes.

The reason we say we're in stage four in land selection is that if this bill basically affects our land selection and our ability to negotiate in good faith, it's going to take that time for us to work around it. If we're in stage four, we have to do this process within the guidelines. When there's a bill that's put forward, it basically takes lands off the table.

Mr. Claude Bachand: So what you're saying is that Bill C-48 should not apply to the lands you are claiming and are in the process of negotiating until the end.

Chief John Henderson: Yes. Then we have a voice in deciding whether or not we want these lands protected.

Mr. Claude Bachand: Okay.

Merci.

Mr. John Duncan: Just for clarification, that's the whole B.C. coast, correct?

Chief John Henderson: Yes.

The Chairman: Mr. Bonwick, then Mr. Godfrey.

Mr. Paul Bonwick (Simcoe—Grey, Lib.): First of all, Chief Henderson, thanks very much for coming in, and congratulations on your building award. It sounds as though you have quite an entrepreneurial spirit about you.

I just wanted to review a couple of things in tent administration, and then maybe lead to a couple of questions as well.

Insofar as the actual purpose of the legislation itself is concerned, perhaps I can read them—there are just two points—into the record. It's for the protection and conservation of representative marine areas of Canadian significance, and “for the benefit, education and enjoyment of the people of Canada and the world”. They're pretty much motherhood issues.

• 1635

Insofar as the administration side of it goes—you have a copy of this, I'm sure—it says there will be consultation with government agencies, aboriginal organizations and coastal communities prior to the establishment of these areas. The legislative process requires that to take place.

Now, you've raised some points with respect to impact that, to be quite honest, I've never considered from an economic standpoint. You cited shellfish harvesting, for example, and a couple of others.

First of all, I want to assure you that some of the points you've raised I will certainly be addressing directly to the officials to find out if they've taken these points and impacts on your peoples into consideration.

You spoke about representing numerous communities along the B.C. coast, as many as 7,000 people, and from a property standpoint, potentially the entire west coast. You touched on the oil and gas industry and mining industries fairly heavily throughout your presentation. Are you also speaking on behalf of them, or is this a collaborative effort from the mining perspective as well?

Chief John Henderson: Basically, I'm speaking for myself and those I represent, which is our community, when I speak on issues such as mining and those tracts of land.

You must remember that at one time, when we started the treaty process, it involved 15 first nations going together to the table. As part of that process, we eventually split up into different areas because it was just too vast, too large. We're down to five first nations now, and the other group works hand in hand with us. We've agreed to share information, overlapping boundaries and jurisdiction through protocol agreements with each other.

Mr. Paul Bonwick: I'm sure the economic impact of the issue you're addressing is very legitimate, but I guess my concern stems from the mining side of it. Focusing on that for a moment, you cited in your presentation, on a few different occasions, oil and gas exploration or mining industries, and the partnering between yourselves and them. That's why I ask whether it's a joint representation or simply—

Chief John Henderson: It simply leaves the door open for first nations to have opportunities. The way this is designed and developed, it almost seems as though once the treaty process is over and we have vast tracts of land or marine resources—if we get them—we would like to have an opportunity to somehow make them economically viable so we could sustain ourselves. We want to be self-sustaining; we don't want to have to rely on government. That's what we've said, and our community has taken that direction right from day one.

Mr. Paul Bonwick: The last question I have is, are your concerns strictly centred around the economic impacts of this legislation on your peoples and communities along the coast?

Chief John Henderson: Yes, because basically it restricts us. As well, as I stated a little earlier, it's going to affect us in traditional areas, such as hunting and areas of concern. We've already negotiated hunting rights within the province of British Columbia. To have that affected now is wrong. It took a lot of hard negotiations to get what we now have from the province.

The Chairman: Mr. Godfrey.

Mr. John Godfrey: I also want to thank Chief Henderson for coming, because I think it was well worth the visit and the trip. As inconvenient as it may have been for you, it's extraordinarily useful for us.

First, I'm not sure who's here in the room from Parks Canada. Could somebody just wave a hand?

The Chairman: Is somebody from Parks Canada here?

Mr. John Godfrey: Yes, the folks are here.

I would like to put it on the record, for both the representatives who are here to listen and our own researcher, that I think it's extraordinarily important for the comfort level of this committee that these issues be directly addressed. We weren't briefed on them specifically yesterday, and before we do anything with the legislation, I think we have to hear from Justice, Indian Affairs, and Parks as to exactly how the overriding considerations of aboriginal rights fit into this—there are references in the legislation—and how this fits into this dynamic and evolving treaty process, which the chief has so well described.

• 1640

So that's the first point. That's where we're reserving those pieces of information for future reference.

Second, I would point out—perhaps reassuringly, I hope, to Chief Henderson—that the legislation does not, at this moment, establish any specific marine conservation areas. It is a national framework document that is about process.

It is true that there are certain suggested areas that seem to be put forward, but what I have attempted to do is to understand—and this is my third point—how the direct references to aboriginal concerns work. I come up with four specific references. There may be others, because I've read rapidly.

The Chairman: In the legislation?

Mr. John Godfrey: Yes, in the legislation itself.

Under subclause 4(2), there's a reference to “reserves for marine conservation areas”—those are marine reserves—and further:

when an area or a portion of an area is subject to a claim by aboriginal people that has been accepted for negotiation by the Government of Canada under its comprehensive land claims policy.

The next references come under “Administration”, which my colleague referred to. In subclause 8(4), it says:

The Minister may enter into agreements with other federal and provincial ministries and agencies, local and aboriginal governments and non-governmental organizations

In subclause 9(1), it says:

The Minister shall, within five years after a marine conservation area is established, in consultation with any federal and provincial ministers and agencies, affected coastal communities and aboriginal organizations and other parties that the Minister considers appropriate, prepare a management plan

The final reference is in subclause 16(6):

The Governor in Council may, after the Minister has consulted with affected aboriginal organizations, make regulations respecting activities that may be carried on by aboriginal people in a marine conservation area by virtue of their existing aboriginal or treaty rights as recognized and affirmed by section 35 of the Constitution Act, 1982.

I'm not a lawyer, and I'm by no means an expert in these issues, but these seem to be the four specific references in the legislation. I don't know whether it's a fair question to ask, or whether it's one that you might want to take back and talk about with people who worry about these matters on your behalf, in terms of whether this provides any level of comfort to you and whether there are words there that are inappropriate words. But given the fact that this is an act that has to cover the whole of Canada—so it's not just about British Columbia—I think what we will need is some quite specific feedback on concerns that relate to those passages where there is reference to aboriginal communities.

I don't know if you have any specific comments at this point on that.

Chief John Henderson: Some of the documents I'm reading from here were designed by lawyers. One part of the document I presented to the committee reads like this:

The importance of fishing was recognized by the Indian Agent who surveyed the Indian Reserves of the Laich-Kwil-Tach Nation as he stated as follows:

...I explained that I was commissioned by the Government to define reserves for their use; that I was there for the purpose of consulting with them as to their requirements; and I pointed out to them the advantages they would derive from having lands so set apart, which would virtually give them the control of their fisheries.

These are issues that have never been addressed and never been respected by the Government of Canada. We have been given exclusive rights over marine resources in our territories to survive by because of the simple fact that we don't have any land.

• 1645

We were asked by the Nisga'a group why we're in the treaty process when we're economically viable now. We're trying to be self-sustaining, but as we progress, we have no more land through this process. The lands we developed are fee-simple lands negotiated by us through the Government of Canada.

I find it kind of curious that when I come to meetings, these questions are asked about why we're scared of tactics such as putting in parklands. We put our backs against the wall the majority of the time because of what's happened to us in the past. It's those past hurts that I do not want to see happen again.

I can't help but say that. I hope you guys hear me, because it's important that I bring something back and say, hey, our concerns are going to be dealt with in an open and honest manner, not behind closed doors.

That can't happen. We've seen the design of policy that closes the door to us. We've seen that.

Through a lot of research, I have found...and I'll use the example of what occurred when our people went to war and supported this country. First nations people came home and got nothing. They got sent back to their villages. Veterans of this country got tracts of land and other benefits while first nations veterans didn't get any. I have relatives who went to war and were then sent back to the reserve. They're still alive today, and they're still complaining. They're saying, “Go fight for my rights.” That's why I'm here today.

I'm trying to be a voice for our elders, a voice for our kids, my children's children, and their future. That's the goal, the objective of first nations people and their leadership today. We've been taught by our elders to respect them, to respect who we are, and to respect the people of the future. That's why I bring this forward.

Read what it says. Look at how much land we got. I don't know if you guys have read it; I know I have, on numerous occasions, while doing research.

It's stated in McKenna-McBride that coastal communities were given small pockets of land because they survive by the resources. That's why I'm here. We're a resource-based people.

What about the forests? The trees are important to us. Sure we want canoe trees left alone. We've already negotiated those with forest companies. We want those canoe trees left aside for the best use of our generations to come. They're 400- or 500-year-old cedar trees. We build authentic wooden canoes, war canoes, that are 40 or 50 feet long and 6 feet wide. It takes a pretty good size of tree to make a canoe like that.

Those are the types of things we negotiate with the forest companies today, and we want to have those avenues open to us. Don't close the door. Don't have those policies. I speak from the heart on these issues, because that's who we are. The cedar tree is a tree of life to us, every aspect of it. It starts from the bark. I can sit here and talk about things like that all day to you guys and you'll wonder what I'm talking about, but it's because of those teachings from elders. I had a wise father, and I got a little wiser and wiser as I grew up.

The other day I lost an uncle who was 96 years old. I went to his funeral. Some of his last statements were, “Go to school, go learn the process, and fight for our people.” I speak for those people because they're giving us direction. They tell me, “Don't let them take it away from you. They're your lands. You utilize them. You've hunted them traditionally. You've gathered food on them.”

• 1650

That's what I'm here today to tell you. We are who we are. We're resource people.

Mr. John Godfrey: Thank you.

The Chairman: Chief Henderson, the time is running on. That's unfortunate, because we could hear from people like you for a long time.

I have had a lot of interaction with aboriginal people here in the east. I know a lot of them, and what always strikes me is how eloquent and sincere they are about telling us about Mother Earth, about their value systems.

I think we understand what you are about. You might think you're speaking into thin air, but I don't think so. I think we understand you very well. I think you make your point very convincingly.

I would like to ask you one question before we have to break up and let you go. This subclause that Mr. Godfrey referred to in the legislation, subclause 16(6), is a key section about aboriginal people. I just want to understand where you're coming from.

What it says, really, is that the minister will consult and then may make regulations that exempt some of you. If I understand you correctly—and maybe you could tell me if I do—what you are saying is that these are acquired rights that are yours. It's your land, and we shouldn't be deciding what we do or don't accept. It should be the reverse. We should start respecting what we have in the first place.

Chief John Henderson: It brings up a situation from a few weeks back, when we were negotiating with the federal and provincial negotiators. They got upset with me because they asked me to prove we had title. I asked them why they thought they had title. I told them to prove to me where the bill of sale was.

Basically, we want to have a say. We are negotiating in good faith. We got into the process in good faith, and we want to leave in good faith. After the settlement is done, if all three parties have been acting in good faith, then we can shake hands. My grandfather always said that shaking hands is better than a document on a table. It means a lot more.

You could keep regenerating about this jurisdiction and could keep saying that you're going to set aside these rules and regulations for first nations. Well, if this process is going to continue, we want to have our own people representing us. We want our own people to help you design it in a way that best suits all of us. What we're saying is that if it can't have first nations input into its design, then throw it out.

The Chairman: Thank you very much for your testimony, Mr. Henderson. It was very eloquent, very convincing, and very well put. We'll certainly follow it up.

With that, I think we'll let you go.

Mr. John Duncan: Could I just add a comment at the end?

The Chairman: Yes.

Mr. John Duncan: These are my own views, John.

It's easy for the government to drop this bill. Other departments have existing legislation under which they can do basically what they want in terms of water designations.

Of course, you know I feel that way because you read my speech in Hansard, didn't you?

I think it's important for you to walk away from here knowing that this committee has planned for three weeks of listening to witnesses, and three weeks only. The witnesses are already scheduled. It's going to be difficult to fit anyone who is not scheduled into those three weeks. Those people in British Columbia need to be heard from, though, so that's the message you can deliver back home. One way or another, this committee has to hear from them soon. Otherwise, it won't have the same impact.

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I mean, you've had an impact—you've been heard—but I think there's a much larger voice out there.

Thanks, John.

Chief John Henderson: Thank you.

The Chairman: Mr. Bonwick.

Mr. Paul Bonwick: Just for my own clarification, is there somebody the chief isn't representing? I was under the impression that the chief was in fact representing all the coastal communities, and you just suggested that there were communities or organizations that haven't been heard of now—

Mr. John Duncan: Yes, there are many other sectors in British Columbia. John doesn't speak for regional districts, municipalities, some of the industry and so on.

Chief John Henderson: I actually had a document, but it got lost in the crunch at the end there. I was actually supposed to bring documents from the municipality of Campbell River, but we never touched base. I got busy with gaming meetings and stuff like that.

The Chairman: If you have a brief from the municipality, you're welcome to—

Chief John Henderson: No, that's what I said; we never did touch base, because I was tied up.

The Chairman: I invite you when you get back home to spread the word and ask them to write to us as soon as possible, or to send any briefs to us. They would be welcome, and circulated to all the members, I can assure you.

Thank you very much, Mr. Henderson, for coming. I hope you make your flight.

Mr. d'Eça, the floor is yours. I'm sorry we don't have more members, but there's a debate on Bill C-55 going on in the House and some of our members are tied up there speaking in the debate.

Mr. Michael d'Eça: Thank you, Mr. Chairman. I'm also wondering whether you are still planning on wrapping things up at 5.30 p.m.

The Chairman: You go ahead. We'll just give you the time.

Mr. Michael d'Eça: Good afternoon. I am, and have been for the last five years, the legal adviser to the Nunavut Wildlife Management Board, also known as the NWMB, a land claims board operating under the Nunavut Land Claims Agreement, a land claims agreement that applies to an almost two-million square kilometre area in Canada's eastern Arctic, including a significant portion of Canada's territorial sea.

Thank you for this opportunity to speak to you. I'm going to try to be as concise and to the point as I can be. Although I don't think I see any, I'm hoping members have copies of the NWMB's submissions, duly translated. It's a 16-tab submission. It was delivered to the clerk on January 15.

Good. For one thing, there is simply not enough time to go through all those submissions with you, and I'm going to truncate the points we're making. My intention is certainly to provide you with a very solid idea of the motivations behind the NWMB submissions and the general position advocated by the board.

To start off with, at the risk of overwhelming you with some names and acronyms, I do think it's important to place the board's submissions in a slightly larger context. You may also have before you the submissions of a body known as Nunavut Tunngavik Incorporated, NTI, and you will receive those of another body known as the Nunavut Marine Council.

I'm going to explain to you what those entities are, but the point I want to get at is that the committee members may find it helpful, when reviewing the various submissions, to review those three sets of Nunavut submissions together. When you do, I think you're going to find that the views expressed in them and the recommendations made by them are remarkably consistent.

NTI, as I just mentioned, represents Inuit under the Nunavut Land Claims Agreement. The Nunavut Marine Council is comprised of four independent resource management agencies established pursuant to the terms of the claim. Those agencies are not Inuit organizations but administrative bodies composed of both Inuit and government appointees. They're co-management bodies, and they carry out various resource management functions under the land claim.

I'll give you a very brief description of the four agencies that make up the Nunavut Marine Council.

First, there's the Nunavut Water Board, which regulates inland water use and water management within the almost two-million square kilometre Nunavut settlement area.

I see the map is up on the overhead.

Area three is the Nunavut settlement area. You can see how large that is and how much of Canada's territorial sea is covered by that. So that's the water board.

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The planning commission plans for the use of lands and waters within that settlement area. There's an impact review board, which determines whether projects contemplated to be carried out in the Nunavut settlement area should proceed, and under what terms and conditions.

Finally, you have the NWMB, the board I am representing, which is the main instrument of wildlife management and the main regulator of access to wildlife within the Nunavut settlement area.

Together the three boards and commission I just mentioned may act as the Nunavut Marine Council, and they can advise and make recommendations to other government agencies in relation to the marine areas of the Nunavut settlement area.

So my first point is simply that the general views and recommendations I am raising with you today are advocated for the most part not simply by the Nunavut Wildlife Management Board but also by the water board, the Nunavut Planning Commission, the Nunavut Impact Review Board—that is, the Nunavut Marine Council—and by Nunavut Tunngavik Incorporated on behalf of Inuit. That is why I suggest that the committee consider reviewing together the three sets of submissions I have just mentioned to you.

There's one other point that I think needs to be addressed at the outset—namely, just how profoundly the provisions of this act will touch upon the lives of aboriginal peoples in Canada.

You can see from the first overhead, which was lent to me by Environment Canada, an illustration of those parts of Canada's territory that are presently, or expected to shortly be, subject to land claims treaties. I'm sure you've already noted that almost all of Canada's extensive coastline falls within land claims areas. What that effectively means is that much of Canada's territorial sea also falls within land claims areas. In the case of Nunavut, for instance, 43% of Canada's ocean coastline is found within that one land claim area, which includes the 12-mile territorial sea that is adjacent to Nunavut.

Perhaps I could ask the clerk to put on the second overhead.

This is also reproduced in NWMB's submissions to you, in tab 16. This map was developed by Parks Canada. I'm sure you're all familiar with it. It's a map of the national marine conservation area natural regions.

Clearly, the correlation between land claims areas and the marine conservation area natural regions is striking. In fact, it's difficult to find a region that does not fall either within a land claim area or within an area of traditional use and occupancy by one or more aboriginal peoples.

With respect specifically to the Nunavut Land Claims Agreement, virtually all of the nine areas within the Arctic Ocean region and one within the Atlantic Ocean region fall within marine areas subject to the jurisdiction of the NWMB and other members of the Nunavut Marine Council.

I'd like to say a few words about the legal significance of land claims agreements. As you know, they are protected by section 35 of the Constitution Act, which is the supreme law of Canada. You also know very well how difficult it is to amend the Constitution. So constitutional protection means, first of all, protection against extinguishment or change. It also means supremacy over inconsistent legislation.

Section 52 of the Constitution states:

any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force and effect.

In addition, land claims and their ratifying legislation contain primacy clauses, similar to section 52, that require the land claim agreement to prevail over inconsistent or conflicting legislation. Such a clause is itself a land claim right, recognized and affirmed by section 35.

The practical effect of this aspect of constitutional status is, to give a concrete example, that any term of a marine conservation areas act that is found to be inconsistent or in conflict with the Nunavut Land Claims Agreement is of no force or effect to the extent of its inconsistency or conflict.

I will now turn to the NWMB's specific concerns with the proposed Marine Conservation Areas Act.

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First of all, the board wishes to assure the standing committee that it supports in principle the Government of Canada's intention through the enactment of this proposed act to protect and conserve representative marine areas “for the benefit, education and enjoyment of the people of Canada and the world”. But as Chief Henderson pointed out, I think what is unfortunately missing in Bill C-48 as currently drafted is a recognition of substantive requirements of land claims agreements and a sufficient recognition of aboriginal rights. That includes the jurisdiction of land claims bodies such as the NWMB and the other members of the Nunavut Marine Council in many of the matters that were addressed by the proposed legislation. The bill is inconsistent and at times in conflict with this particular land claim, the Nunavut Land Claims Agreement, and with other land claims.

It is our position that the inevitable result of a failure to take account of the substantive requirements of land claims agreements, including the jurisdictions of bodies established under such agreements, will be jurisdictional disputes, misunderstandings by officials trying in good faith to administer the act, confusion among the public, costly attempts to assert or to defend perceived rights, and the diversion of valuable time, resources, and attention away from marine conservation areas.

It only makes sense to practise preventative law. The standing committee members, as legislators, and the NWMB and the other members of the marine council, as well as NTI, as bodies intimately involved in the implementation of a land claim, should have a common interest in wishing to prevent disputes and misunderstandings from occurring.

Of course it's costly and time-consuming to amend legislation already on the books simply to bring the law in line with the new legal landscape forged by modern land claims agreements. New legislation, on the other hand, offers an ideal opportunity to recognize land claims agreements. That recognition can be achieved simply, efficiently, and at virtually no extra cost.

On the other hand, to allow new legislation to remain silent, which is essentially what the present situation is with Bill C-48, notwithstanding the four or five provisions the committee member raised, is an invitation—indeed, a prescription—for problems down the road.

The NWMB offers in its submissions 14 recommendations. They're set out in detail and they're aimed at strengthening and clarifying the bill. We ask that the committee consider them. I'm not going to walk you through all those recommendations this late in the afternoon. There's not enough time, obviously, to do so. But I urge the members to carefully review each one. They all provide specific references and justifications for their inclusion in the bill. Each deserves your careful consideration, and I know they will get it.

In the time remaining, I hope to be able to present to you five of those recommendations in a certain amount of detail. I'll be using the recommendation number as it appears in the NWMB submission binder. If you happen to have the NWMB submissions with you, you may wish to follow along as I review them.

I'm going to start with recommendation one. That refers to the inclusion of aboriginal peoples and bodies established under land claims agreements in the preamble to the bill.

For a quarter century now, Canada has played a major role on the world stage in the development of an international conservation strategy. For instance, Canada is recognized internationally as an important player in developing and implementing the Convention on Biological Diversity, adopted in Rio in 1992. That convention is a leading example of the emerging international law of sustainable development. It sets out a number of international and national objectives for action, and an overall management framework aimed at biodiversity conservation and the sustainable use of biological resources.

It's significant that the convention also recognizes, in both its preamble and several of its provisions, the tremendous importance of the role of aboriginal peoples in biodiversity conservation and the sustainable use of biological resources.

In conjunction with that international leadership role in conservation and sustainable development, Canada has been busy developing a national strategy for the conservation and sustainable use of biological diversity. A key element of that strategy is to introduce new legislation aimed at meeting Canada's international obligations and at achieving its domestic conservation goals.

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So the establishment of a Marine Conservation Areas Act in combination with such others as the 1997 Oceans Act and the proposed Canada Endangered Species Protection Act forms a significant part of this national conservation strategy.

The Oceans Act and Bill C-48 are particularly related. Both deal with the management of estuarine, coastal and marine ecosystems, and the development of a national system of marine protected areas.

In the preamble to the Oceans Act, Parliament explicitly acknowledges that the Minister of Fisheries and Oceans must collaborate with, among others, affected aboriginal organizations and bodies established under land claims agreements in encouraging the development and implementation of a national strategy for the management of estuarine coastal and marine ecosystems.

The proposed Canada Endangered Species Protection Act, also known as CESPA, died on the Order Paper when the 1997 federal election was called. I'm told it is going to be reintroduced in the House of Commons in 1999.

The preamble to CESPA recognized that the roles of the aboriginal peoples of Canada and of the wildlife management boards established under aboriginal land claims agreements and the conservation of wildlife in the country were especially important. Compatible with its commitments under the Rio Convention, then, in both the Oceans Act and in CESPA, the Government of Canada has clearly recognized that aboriginal peoples and relevant land claims boards are vital to wildlife and wildlife habitat conservation efforts in this country.

Bill C-48 is, of course, very concerned with the conservation of both wildlife and wildlife habitat. Accordingly, its preamble ought to also acknowledge the extremely important role to be played in that effort by aboriginal peoples and bodies established under land claims agreements.

I would say that might go a certain way toward relieving some of the fears that people such as Chief Henderson have when they don't see any indication of the very high role that aboriginal people ought to be playing in these kinds of efforts.

This particular point I'm making is I think amply illustrated in Canada's National Marine Conservation Areas System Plan, produced by the Department of Canadian Heritage, Parks Canada. It is central to the present effort to establish the Marine Conservation Areas Act. Under the plan, I again draw your attention to the number of areas within the national marine conservation area natural regions that fall within land claims areas or areas of traditional use and occupancy by aboriginal peoples.

For all of the above reasons, the NWMB strongly recommends the inclusion of the following clause in the preamble. I don't know if you have a copy of the bill handy, but we say it should be put directly after line 15. That particular section of the preamble starts off with, “And whereas Parliament wishes to affirm the need to”, and then there are a number of paragraphs.

One of those paragraphs would be:

involve the aboriginal peoples of Canada, bodies established under land claims agreements, and coastal communities in the effort to establish and maintain this representative system of marine conservation areas,

I'm going to move on to recommendation two, which is to insert a non-derogation clause directly after clause 3. It's unfortunate that Chief Henderson couldn't stay. I would love to have had a conversation with him about the NWMB's submissions to see if some of these perhaps meet a number of the concerns the west coast first nations have.

The inclusion of a non-derogation clause—

The Chairman: In the interests of time, Mr. d'Eça, I think it's pretty self-explanatory. It's very clear. Maybe you could read the recommendation itself.

Mr. John Duncan: We have the document as well.

The Chairman: Yes, we have the document, so the recommendation is very clear. But if you do want to speak about it, that's your right.

Mr. Michael d'Eça: I know time is a factor, but I would also just briefly mention that the recent framework to improve the social union for Canadians, just signed by the Prime Minister and all of the premiers, except the Premier of Quebec, has a similar non-derogation clause—namely:

For greater certainty, nothing in this agreement abrogates or derogates from any Aboriginal treaty or other rights of Aboriginal peoples including self-government.

So there's a long history of this kind of clause.

The recommendation is simply that you include this clause within the act:

For greater certainty, nothing in this Act shall be construed so as to abrogate or derogate from any existing aboriginal or treaty rights of the aboriginal peoples of Canada under Section 35 of the Constitution Act, 1982.

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I'll move forward to recommendation five, Mr. Chair. If you do want me to speed it up or if you want to give me a deadline, feel perfectly free to do so. I'm about two-thirds of the way through what I wanted to say.

The Chairman: Why don't you read the recommendation, and if by chance we have queries, then you can get into the details. I think they are pretty self-explanatory, so maybe you could cover the recommendations for us.

Mr. Michael d'Eça: Recommendation five is that you include a reference to traditional, local or community knowledge within certain provisions of the bill. We point out subclause 8(3) and paragraph 16(1)(k). I'll simply read the inclusions that we would like to see there.

Under subclause 8(3), it would say:

The Minister may maintain and operate facilities and carry out operations and activities to achieve the purposes of this Act, and may conduct research, based on science and traditional or community knowledge, pertaining to marine conversation areas.

Under paragraph 16(1)(k), it would read:

16.(1) The Governor in Council may make regulations, consistent with international law, for the control and management of marine conservation areas, including regulations

for the control of scientific and traditional or community knowledge research activities;

The Chairman: I should mention to you for your encouragement that the Canadian Environmental Protection Act, which is being examined clause by clause right now, has actually been amended to now include this.

Mr. Michael d'Eça: That's excellent.

The Chairman: Or it's in the process of being done.

Mr. Michael d'Eça: In CESPA, it's the same thing. I think it is a growing area that ought to be included in bills, and I hope this committee will do it in this case.

Recommendation seven—and I'm kind of picking and choosing recommendations now—deals with clause 9 of the bill, which deals with management plans. We say that clause 9 ought to be amended to reflect requirements of applicable land claims agreements.

Clearly, management plans are at the heart of the effort to maintain and protect marine conservation areas. We've documented in our submissions the role the NWMB plays in the approval of management plans, and we've talked about other areas of the land claim that must be taken into account in this section.

I'm not going to read all the changes we are asking for in clause 9. Essentially, the modifications call for such things as the preparation or amendment of a management plan in cooperation with any body that is established under an aboriginal land claims agreement and is affected by the plan; and the preparation or amendment of a management plan in accordance with applicable provisions of any land claims agreement that applies to that area.

I'll mention just one other recommendation, with respect to subclause 16(6).

The Chairman: Which recommendation is that?

Mr. Michael d'Eça: This is recommendation 14, Mr. Chair. I think you'd mentioned subclause 16(6) to Chief Henderson.

The Chairman: Yes, that's right.

Mr. Michael d'Eça: We seek to have that subclause amended in two ways—to include a reference to bodies established under land claims agreements and to clarify the effect of the regulations.

First of all, within land claims, many of the bodies established are not aboriginal organizations, but the provision refers only to “affected aboriginal organizations”. Taking into account the way modern land claims are set up, you have to make a modification there.

In addition, it is very important that the reader of the act not receive the false impression that the regulations made pursuant to this subsection provide the legal authority for aboriginal people to carry on certain activities in a marine conservation area. Clearly, aboriginal people may carry on those activities pursuant to their aboriginal or treaty rights. Any regulations enacted would be for the purpose of recognizing and reflecting the already existing and constitutionally protected rights of aboriginal people to carry on such activities.

I think that was perhaps what you were getting at as well, Mr. Chair.

The change we ask for in 16(6) is not great, but I think it satisfies the concerns. It would read:

16.(6) The Governor in Council may, after the Minister has consulted with affected aboriginal organizations and bodies established under land claims agreements, make regulations recognizing activities that may be carried on by aboriginal people in a marine conservation area by virtue of their existing aboriginal or treaty rights

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The Chairman: I imagine the wording suggested in recommendation 14 is such that you take it for granted that your second recommendation would have been carried out.

Mr. Michael d'Eça: Yes, we are taking the high road throughout, assuming you will proceed with the previous recommendations.

The Chairman: Okay.

Mr. Michael d'Eça: Mr. Chair, may I have another minute or two just to conclude?

The Chairman: All right.

Mr. Michael d'Eça: The proposed act as currently drafted lacks an appropriate recognition of the application of land claims agreements, of traditional and local knowledge, of the jurisdiction of land claims bodies, and of the recognition of aboriginal rights in a number of critical areas the legislation tries to address. In preparing the 14 recommendations set out in its written submissions, the board has attempted to rely in part upon similar or analogous provisions already contained in the 1997 endangered species legislation and in the Oceans Act, as well as other statutes. So we're trying to build upon past battles and past discussions and past decisions.

The board has also attempted to follow Canada's own biodiversity strategy, which states that it recognizes and respects that, “the conservation of biodiversity and the sustainable use of biological resources are fundamental to Canada's indigenous communities”.

I think that's a point Chief Henderson made.

It's therefore essential that Bill C-48 itself recognize and respect that the goals it is attempting to achieve and the processes it wishes to put in place are fundamental to Canada's indigenous communities. The NWMB's recommendations are designed to reflect that recognition and respect by having the act explicitly refer to land claims agreements, traditional and community knowledge, and land claims bodies in those provisions where it's appropriate.

That's really all I have to say. I want to thank the members for this opportunity to make these recommendations and for the time you have spent listening to me today and will spend considering, at your leisure, the recommendations more fully.

The NWMB would certainly be very happy to assist the committee in whatever way would be most helpful, whether it's further or follow-up work identified as necessary or a recall to committee. I also would certainly be happy to try to answer any of your questions right now.

Thank you.

The Chairman: Thank you. This has been very valuable.

Mr. Duncan.

Mr. John Duncan: Thank you for your presentation.

Last spring I was part of the fisheries committee, and we received in Iqaluit a presentation from a group representing a body of authority. I can't remember exactly who it was. In any case, the circumstance they described I think is an example of what can happen when we have a comprehensive agreement in place that's not respected somehow—the Nunavut agreement.

The situation described was a reallocation of fish quota by the minister without consultation, as called for under the Nunavut legislation. That thing ended up in the courts and the fisheries minister lost. You're probably very familiar with what I'm referring to.

But I think the message I'm trying to deliver here, or that you're trying to deliver, perhaps, is that we have existing legislation. This act does not recognize that legislation to the degree that is necessary. I think we probably heard a very similar message from Chief Henderson this morning, so we're not just talking about the British Columbia coast, we're talking about the Arctic coastline, and we may indeed be talking about the Atlantic coastline as well.

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What we may have here, Mr. Chair, is a situation where the Department of Indian Affairs and Northern Development has caught up to the fact that the world has changed, but some of our other departments maybe have not caught up to the fact that the terms of reference have changed in regard to how you build legislation and how you arrive at decisions with the new reality of these comprehensive claims.

Your presentation should be treated with much seriousness, and I think we've heard that message today. I know that wasn't a question, and if you want to add a comment, please go ahead. I don't have any more questions.

Mr. Michael d'Eça: It's certainly a welcome comment from you. I should just tell you that the body that appeared before you in Iqaluit was in fact the Nunavut Wildlife Management Board. I and the chairperson of the board spoke to you and the rest of the fisheries committee about the turbot situation—

Mr. John Duncan: I didn't recognize you.

Mr. Michael d'Eça: I had a beard then.

Mr. John Duncan: Yes, that's why.

Mr. Michael d'Eça: Thank you for your comments.

[Translation]

Mr. Claude Bachand: Mr. Chairman, I'm wondering if this isn't another case where we're faced with the eternal dilemma, namely that given the size of the federal bureaucracy, the left hand doesn't know what the right hand is doing.

Bill C-62 which is before the House focuses on the water resources of Nunavut. It makes provision for a number of things, including the establishment of a water board and the attribution of licences. By the way, we can't forget the April 1 celebrations. I've reserved a hotel room in Nunavut for the April 1 festivities which will herald in the new Canadian territory of Nunavut.

As for the draft legislation, we focused earlier on the impact it would have on the West Coast, and on that score, I would have to agree with John, but as for the impact on the Arctic, some very important things are also about to happen. There's going to be a water board which will consider the issue that you have brought to our attention. The map I have here shows that the entire territory of Nunavut will come under the jurisdiction of the Water Board. Does the Department of Canadian Heritage realize that fundamentally, this bill should perhaps not even apply to Nunavut, given that the provisions in Bill C-62 will have an impact on what the committee is considering today?

I don't mean to make waves, but I have some serious concerns about the relevance of your study as far as Nunavut is concerned. Earlier, I questioned the relevance of your study involving the West Coast, in light of everything that's happening with the aboriginal peoples in that area.

I think it's important to consider this. This is not my bailiwick, but I will certainly take the matter up with Mrs. Tremblay, who has responsibility for this area, to ensure that there is no duplication and to see whether perhaps we shouldn't simply defer to Bill C-62.

I don't know if Mr. D'Eça would like to comment. Is he aware of Bill C-62? He's presented his organization's position, but what about the body known as the water board. Are you an offshoot of the water board? Do you supersede the board, or do you report to?

[English]

Mr. Michael d'Eça: We are beside it. We are equal to the water board. Under the land claim, a number of institutions of public government, independent administrative agencies, have been set up. They form a family or a community of land and resource management bodies. There are the water board, the impact review board, the planning commission and the wildlife management board. There's also a surface rights tribunal. They very much try to work together, but they are separate.

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With respect to marine matters, they can actually come together—as they will before this committee, at least in written form—as the Nunavut Marine Council.

That's to answer your last question.

To respond generally to your other point, I think government, Parliament, has to respond to the challenge to integrate the various legal commitments it has already made with the legal commitments it wants to make.

So it wants a marine conservation areas act; I don't think it's an impossible matter to marry that with the commitments that have already been made in land claims agreements, or the commitments you have to aboriginal peoples to protect their rights. But right now, what Chief Henderson saw, and what the NWMB perceives, is that there's an ignoring of those matters, of the land claims and the rights, and just a going ahead with setting up new legislation.

The others have to be taken into account. Clearly, they're protected by the Constitution. If anything, they have the higher status. But certainly one need not necessarily take the position that these are incompatible, that they can't go ahead together. They can. There has to be that mutuality, that trust, that respect, and thoughtfulness put into it, but it can go ahead together.

Generally speaking, my experience is that aboriginal peoples are so very interested in conservation and sustainable harvesting and sustainable development. Really, that's one of the issues that underlies the motivation for having marine conservation areas.

So these aren't ideas that are incompatible with those expressed in land claims agreements or in the traditional ethos of aboriginal peoples. I would urge the committee to look at what the obligations already are, what you already have, and what's trying to be accomplished with this act, and to put them together.

I certainly commend the NWMB's set of submissions to you. They have looked at that challenge and have tried to meet it with a set of 13 or 14 recommendations, whatever it is.

Thank you.

The Chairman: Mr. Godfrey.

Mr. John Godfrey: Once again, thank you very much for coming. I think this was a very useful juxtaposition to have both Chief Henderson and you. Really, between the two, it's been a most profitable afternoon.

Again, I would preface my remarks by saying to the folks from Parks Canada, and to our researcher who's taking notes for future questions to Justice, that I would like very much to know...

I asked Chief Henderson a legal question. Neither he nor I are lawyers, but now we actually have some recommendations that seem to follow through, at least in spirit, on what Chief Henderson was saying. I almost feel that the onus is now on Parks and on Justice to tell us why what seemed to be very reasonable suggestions should not be incorporated as amendments.

In other words, that's a challenge to them that I want to read into the record.

The challenge for us, I guess, is this one. I've read your 14 amendments against the legislation. They make eminent sense. They're consistent. I find them quite commendable. But tell me, given your knowledge of the land claims process elsewhere in the country—we heard the evidence of British Columbia—would this set of 14 recommendations be all-purpose? That is to say, would they do the job? That's what worries me. As far as you know, given the dynamic claims process—we're in stage four or five, etc.—is this a generic, one-size-fits-all set of recommendations?

I mean, I hope the answer is “yes”, but that's the question.

If the answer is yes, then it seems to me—and this is a tactical suggestion—that since you've seized the pen on this one, it would enormously strengthen the hand of not only your organization but the hand of those who have similar interests if there could be a general agreement that these words will do the job.

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That will make it very hard for us to resist. If, however, there are competing words, then that will make it less difficult for us to resist.

Those are my observations and questions to you.

Mr. Michael d'Eça: First of all, to respond to your question about whether this is a kind of one-size-fits-all, generic application that would apply to all land claims, that was certainly our intention in drafting these.

We've appeared before a number of standing committees, and one of the things we have learned over the years is that standing committees and Parliament don't want to have specific little exceptions that deal with Nunavut or Labrador or B.C. but something that can capture the entire situation, hopefully.

So that's how it's drafted. We feel it should satisfy the concerns of aboriginal peoples and of land claims bodies throughout the country.

I don't know if you see in your submissions, at the very end, the number of organizations on the cc list. It's pretty extensive. We wanted to get it out to as many as we could. If there was a first nation that had a connection to the sea, we wanted them to see these and hopefully to respond in some way.

We haven't had any feedback yet from anyone, and I don't know if we will. My experience is that, generally speaking, written volumes that maybe lawyers and politicians like don't go over so well with indigenous people in communities. So we may not get the response we want.

I agree, though, that the more general agreement there is about this, the better—the more pressure that would be put upon you and upon Parliament to agree to the changes we're asking for.

Mr. John Godfrey: A very practical step, given the fact that we're in a three-week process of witnesses, would be to certainly communicate—and we had Chief Henderson here as a witness—off-line, if I can put it that way, with Chief Henderson and any other interested party.

We might even try to...well, I guess there will be a public record of who the written submissions are from. If they come from aboriginal groups, I think it would make great sense for us, in whatever appropriate manner, to allow you, in a sense, to help sell this to them.

I mean, I'm speaking way out of turn. I have no idea what Justice's or the department's reaction to this would be, but it would seem to me that you can be a dealmaker here if you monitor the process, keep an eye on the submissions, and try to say, for instance, to Chief Henderson and others, “Will this satisfy your concerns?”

That would make it very easy for us to do our duty.

Mr. John Duncan: Perhaps I can comment on that.

I don't think our witness would want to put words in any other group's mouth, but beyond that, the big difference between most of the people who would have concerns from the aboriginal community in British Columbia and anyone from Nunavut would be that their claims are still being negotiated. As long as they're being negotiated as opposed to already concluded, there will be very different concerns.

That's the message we were receiving from John Henderson today.

Mr. John Godfrey: But did I understand Mr. d'Eça to say that those different processes were taken into account in his suggestions? In other words, the really tough question is whether Chief Henderson's lawyer, if they sat down and looked at this, would say, yes, given the language, which anticipates certain things happening that haven't yet happened, depending on the claims process, this might do the job.

That's really the question.

The Chairman: I think the point is well taken. I don't think it's for us to generate this type of activity, but I think Mr. d'Eça has heard you loud and clear.

Mr. John Godfrey: He'll do his duty.

The Chairman: If you want to follow it up and get support for your recommendations, more power to you. Certainly it would help us carry your message more forcefully.

Let's leave it on this basis.

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Mr. Michael d'Eça: Very good, Mr. Chairman.

The Chairman: I think you've made your case very well, very clearly, and I thank you very much for the recommendations. They haven't fallen on deaf ears. We'll follow things up with the officials and see where we go from here.

Thank you very much for appearing. We really appreciate it.

Mr. Michael d'Eça: You're welcome, and thank you.

The Chairman: The meeting is adjourned.