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]

Thursday, November 18, 1999

• 0913

[English]

The Chair (Mrs. Sue Barnes (London West, Lib.)): Welcome, ladies and gentlemen. My name is Sue Barnes. I am the chair of the Standing Committee on Aboriginal Affairs and Northern Development. We are here for the order of the day, Bill C-9, an act to give effect to the Nisga'a Final Agreement.

There is a point of order.

Mr. Gary Lunn (Saanich—Gulf Islands, Ref.): Thank you, Madam Chairman.

This issue is so incredibly important to not only British Columbians, but all Canadians. This meeting is not in camera and is open to all of the print media. I appreciate there's supposed to be a technical order allowing cameras in here, but I think it would be doing an injustice to the people here to not allow the cameras in.

I would ask for unanimous consent of the committee members to allow cameras to stay, so the proceedings here will not be kept to just the people in this room, but there will be an opportunity for people in the rest of the province to see this. I don't think we should ban cameras because of a technical rule in Ottawa.

So I ask for unanimous consent of the members.

• 0915

The Chair: Thank you, Mr. Lunn. I agree that all Canadians can access this information. We have media available in a public meeting. Unfortunately, your wish and very important request is out of order because the House did not order this televised. That is the rule of the House.

The House, if it so wished, could have done that at the time, but this committee does not have the authority at this time, regretfully. All of the testimony will be on the Internet and the media is present. As long as this meeting is kept in an orderly manner, so we can go through the testimony and hear from our witnesses today, it will be open to the public and they can attend. Unfortunately, the rules of the House say gavel to gavel, and when we're travelling we need that order. So it is out of order.

Thank you very much. We will proceed.

Mr. Mike Scott (Skeena, Ref.): I have a point of order, Madam Chair. I would like to point out that the committee is the master of its own destiny. The committee has the right to decide issues like this, and if we put a motion forward for unanimous consent, the committee has the right to make that decision. I would again put this motion forward for unanimous consent to have TV cameras present during this meeting, so it can be televised.

The Chair: Thank you very much. I just ruled on that, and unfortunately the rules of the House prevail. Thank you.

I will start this meeting by reminding people that if they wish to present briefs, we have clerks outside and to the left.

I want to start by welcoming our witnesses. Before we start with your presentations, I would invite the committee to introduce themselves to you.

Mr. O'Reilly, we'll start with you this time.

Mr. John O'Reilly (Haliburton—Victoria—Brock, Lib.): Thank you very much, Madam Chair, and welcome, everyone. My name is John O'Reilly. I am the member of Parliament for Haliburton—Victoria—Brock, which is situated in central Ontario.

Mr. Raymond Bonin (Nickel Belt, Lib.): Good morning. My name is Raymond Bonin. I am the member for Nickel Belt, which is in northern Ontario.

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

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

Mr. David Iftody (Provencher, Lib.): Good morning. My name is David Iftody. I am the member of Parliament for Provencher in Manitoba. I am also the Parliamentary Secretary to the Minister of Indian Affairs and Northern Development.

Mr. Mike Scott: I'm Mike Scott, member of Parliament for Skeena in northwest British Columbia, where the Nisga'a treaty will actually take effect.

Mr. Gary Lunn: I'm Gary Lunn, the member of Parliament for Saanich—Gulf Islands. I'd like to take this opportunity, being the member from here, to welcome all of our witnesses and our guests. It's great to see some familiar faces and old law professors. So welcome to Victoria. I look forward to this very important debate.

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

[Translation]

Mr. Ghislain Fournier (Manicouagan, BQ): I'm Ghislain Fournier and I represent the riding of Manicouagan which is located on Quebec's North Shore. I'm delighted to be here in Victoria to share with you some thoughts and ideas. I'll be happy to answer any questions you may have. Thank you.

[English]

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

Mr. Gerald Keddy (South Shore, PC): I'm Gerald Keddy, member of Parliament for South Shore, Nova Scotia. I'm the Progressive Conservative critic for Indian affairs and northern development, and I'm a critic for natural resources.

The Chair: Thank you.

We have a panel today, and the time will start with Professor Doug Sanders; followed by Professor Paul Tennant; followed by associate dean of law, Mr. Hamar Foster; and finally, Mr. Mel Smith.

We have a panel time here from 9.15 a.m. until noon. We'll take the full time. We've invited you to do a 10- to 15-minute presentation. I will ask you to stick to that time limit, so the members can then go to their rounds of questioning and have a dynamic conversation.

• 0920

We have five-minute rounds, and we'll try to stay in those time periods to get as many rounds in as possible until the end. If there are some things you have missed in your presentation, perhaps you can bring them out in your responses to the questions.

Without any further delay, I invite our first witness, Professor Doug Sanders, to commence his presentation.

Professor Doug Sanders (Faculty of Law, University of British Columbia): Thank you, Madam Chair.

In the time I have for an introductory statement, I would like to deal with three questions.

First, the question is, is it justified to have a system of limited autonomy such as we find in the Nisga'a treaty, or should differences between collectivities be left completely to the private sector?

The history of colonialism and the greed displayed by non-aboriginal Canadians historically undercut the traditional economies of aboriginal peoples and blocked the establishment of new adaptive economies. Indian communities survived, but badly damaged. I think we've been trying to get to a new balance in which Indian culture and Indian communities are able to exist in some kind of reasonable relationship with the society and economy around them.

Indian communities today are not closed off. Indian children go to provincial schools, although some early grades may be taught in the community. The reserve economies here in British Columbia are often well integrated into surrounding communities. The reserve communities are collective systems only in a limited sense. Individual members own their own property, houses, and businesses within the reserve system. Community governments are oriented toward service delivery, economic development, and cultural enhancement. Successful reserve communities here on the west coast have homes, a shopping mall, a school, a band office and a longhouse.

The basic reason for the limited separate community institutions is to allow the communities to control their own political, social, economic and cultural development to the extent that is feasible in a modern setting. The way to retard or frustrate positive interaction is to do things that are interpreted as threatening the distinct survival of the people and the culture. When any such threat is perceived, there will be a defensive reaction. Anyone familiar with minorities is aware of this. Healthy development and adaptation require a non-threatening atmosphere.

In my view, the Nisga'a treaty is essentially designed to give the Nisga'a a sense of comfort and respect within Canadian society so that they can develop and adapt. It is an integrative scheme in a way that the Indian Act reserve system never was.

I'm not suggesting that the Nisga'a treaty is an assimilationist plot, although there are some in this province who would argue that. In the 35 years that I have been working with Indian people in this country, they have become more self-confident in being Indian, not less. In the same period they have become more integrated into the larger society, not less. The intense controversy over the Nisga'a treaty unfortunately has sent a rather bad message. It has told Nisga'a and other Indians that there are many Canadians who do not welcome this new integration and recognition.

Secondly, is Indian self-government a shift in constitutional architecture, as has been suggested, with the result that the Nisga'a treaty should be seen as a constitutional amendment or at least as a de facto constitutional amendment?

Indian reserve communities in Canada have always been jurisdictional units of some kind with their own local government and limited legislative powers. Section 91.24 of the Constitution Act, 1867, established a certain constitutional space for Indian communities, which it was understood at the time would be filled with a mix of federal paternalism and Indian self-government. In recent years, the policy has been to decrease the paternalism in favour of enhanced self-government.

• 0925

In 1988, the Canadian Parliament gave band councils the jurisdiction to license, zone and tax non-Indians living on leased reserve lands. No one at the time or since has suggested that a de facto amendment of the Constitution was involved, although band powers, legislative powers, were increased. If Parliament were, during this current session, to amend the Indian Act to give jurisdiction over Indian child welfare to band governments, as it could, I do not think anyone would suggest that a de facto amendment of the Constitution was involved. In a similar way, I do not think the powers of Nisga'a government, under the treaty, are a “shift in constitutional architecture”.

It has been common for critics of the treaty to refer to the powers of Nisga'a government as broad, large, and sweeping. Mr. Gordon Gibson, who I understand will testify this afternoon, has called the Nisga'a government under the Nisga'a treaty “a radically new system”. My assessment of the powers involved, in an article recently published in the UBC Law Review, is as follows, and I quote from myself:

They will have no jurisdiction over criminal law. They do not gain the broad jurisdiction that United States tribal governments have over commercial law. Generally, Nisga'a law only applies on Nisga'a Lands. The self-government powers are matters already recognized in the Indian Act, or recognized under intergovernmental agreements—for example on policing, corrections, education, and child welfare—or are matters such as language and culture, in which the Nisga'a are the logical level of government from any point of view. The Nisga'a will also govern over “new” matters, such as the sale of liquor or gaming, but only as the province may allow. Perhaps the only surprising, though not seriously contentious, items in the list of powers are adoption and the solemnization of marriage.

I would point out that one of the major Indian criticisms of the Nisga'a treaty in British Columbia is that the legislative powers involved are modest.

Third, what about modern human rights norms and the Charter of Rights and Freedoms? The Nisga'a treaty is about minority rights. We all recognize I think that the minority situation of indigenous people is often distinctive, for their institutions and economies have been undercut by outside settlers. For this reason, legal protection of their rights has often been seen as necessary. The United Nations Human Rights Commission, established to monitor and interpret the International Covenant on Civil and Political Rights, in both the Lovelace and Kitok cases, has said that special measures designed to recognize and protect the rights of indigenous communities are not in conflict with the covenant. These cases have dealt with limiting residency rights—that's the Lovelace case—and limiting participation in a traditional economy—in the Kitok case—which involves the reindeer herding economy of Sami in northern Sweden.

In more general terms, the human rights committee of the United Nations has said that if a state is pluralistic in fact, as is Canada, the state should be pluralistic in its political and legal systems. The alternative is a system that does not give due recognition to minorities.

• 0930

I think there is broad international agreement that indigenous autonomy serves human rights goals. I think there is also broad agreement that indigenous autonomy should function within certain general human rights norms. The discrimination against women in the Indian Act before 1985 was unjustified because it did not serve any of the goals of indigenous autonomy, it did not represent Indian culture or Indian tradition.

The complete exclusion of non-resident members from voting in band elections was struck down by the Supreme Court of Canada earlier this year in the Corbière case. The court said that it served no Indian goal.

The Federal Court, trial division, in the Shubenacadie case in 1997 ruled that bands, in administering social assistance from public funds, should not discriminate against non-members who had been allowed to reside in the community.

In these three examples, sexual discrimination in membership, residency requirements in voting, and membership discrimination in services to residents, we see parts of the Indian Act reserve system being successfully challenged as we move from a closed paternalistic system to a more open integrated system for first nations communities. It is the latter, in my opinion, that the Nisga'a treaty represents.

Thank you.

• 0940

The Chair: Professor Tennant, please.

Professor Paul Tennant (Faculty of Political Science, University of British Columbia): Thank you, Madam Chair.

I have been invited here as an academic, but I wish to speak as well as a real person, as a British Columbian interested in these matters. I grew up in this province, in fact I reached the age of 40, ignorant of this whole issue, sharing many of the assumptions that I now perceive among the opponents of the treaty.

I have a friend, a psychologist, who specializes in family relations. My friend once said that disputes between spouses over housework are never over housework. I don't think our dispute over the Nisga'a treaty is really over the proposed treaty. It's over underlying values. We haven't had a satisfactory public debate in this province. The two sides have largely spoken past each other. What I want to try to do, perhaps presumptuously, but especially for those of you not from British Columbia, is try to give a bit of an insider's notion of what really is at stake here.

B.C. is certainly not a province like the others. East of the Rockies, it was taken for granted in most areas that native title existed, that treaties were arranged before settlement was allowed and before provinces were created in a good portion of central Canada. British Columbia was very different. It was a separate colony not connected with the rest of British North America. At first, under the British, it did acknowledge native title, and it did sign treaties on Vancouver Island, through Governor Douglas of the Hudson's Bay Company. In fact, right at this moment, we are in treaty lands.

• 0945

Things changed rather quickly before B.C. joined Canada. A new public view—essentially a white view—of natives emerged. It held that the native groupings that had been here were primitive peoples, not meaningful societies, with no laws and no government that was recognizable. There was certainly no relationship to the land that any new authority should acknowledge as meaningful. In other words, in the good old Latin phrase, B.C. was seen as terra nullius, empty land. Part of the support for this view emerged in what became the founding myth of British Columbia.

The founding myth of British Columbia from the European perspective was that people had come in ships and then brought their families—actually quite like the Maori founding myth in New Zealand, but the Maori didn't find any people when they got to New Zealand. In those days, and in the early period in Canada after union in 1871, British Columbia was in some ways socially and politically much more like an Asian or African colony than like your British North American colonies. There were three social groupings, natives, Asians and whites. The whites were in possession of political authority. Before long, they had in fact removed the franchise from the most substantial minorities—the natives, the Chinese, so-called East Indian, and later the Japanese.

Often this episode in our history is referred to as racist, but I don't think that's true. I don't think the whites were racist in the sense of believing in the inferiority of other individuals who were not white. What there was was a profound emphasis on the individual as the most important entity in politics and public affairs. Of course the immigration process had brought individuals wanting to create a new life, rejecting old ways in Europe and elsewhere. In fact, there was a horror of what was called, before the turn of the century, communalism.

Communalism was non-Christian. It was a way that non-Christians, non-whites, tried to run their affairs, and it was seen as highly offensive by the whites. The early reports of Indian agents talk of their task as being to erase communalism, to erase the traditional ways. An individual could thus be freed of the servitude that was seen to exist in other races. For example, people would work for lower wages and send money back home or whatever, and not compete fairly with the white labourers.

The whites saw themselves very explicitly as one of these groups, as in fact they were. It was common in public discourse for “whites” or “the white people” to be referred to. Indeed, the treaties that Douglas arranged here on Vancouver Island refer to the land as becoming the property of the white people forever. So “whites” was a meaningful designation at that time, and whites came to have a very common view of native people as being primitive people, as I said.

Things changed immensely after the Second World War. At least they seemed to change. Racial restrictions were removed, including those on the potlatch and on the making of native claims. In my view, though, the change was not really in terms of underlying values. What had formerly been seen as the right and the obligation of the white majority to limit and control and determine what the minorities could do, and indeed to erase and wipe out the communalism that was there, was now seen as the responsibility of the majority. The whites began to talk in terms of the majority as a designator, as the source of legitimacy for whatever should happen. But there was still the profound belief that communalism in whatever form was a very bad thing. Indeed, in opening up the franchise, one was allowing individuals to leave their traditional ways and to become part of the majority society, again confirming my point that B.C. is not a racist place.

• 0950

Buried throughout all this history was the native perspective. From the beginning, native groups objected to the takeover of their land. They demanded treaties, but of course they did not get them because of the white view of primitiveness on the part of native peoples. Primitive people could not be seen as owning the land. In fact it was believed by many whites that natives didn't even have a concept of land ownership that one could refer to, and the white agitator was blamed as the source of these ideas about property that the natives were propounding.

What has happened in the last twenty or thirty years is that the courts have correctly prompted—and prompted as a result of British Columbia cases, notably the Nisga'a or Calder case in 1973—an enlarged understanding. In the last two or three decades, the media have turned to focus heavily on aboriginal affairs. Through schooling and other ways, aboriginal people have emerged with their own very credible spokespersons, and we academics and others have started to pay some interest to these issues.

In terms of these ideas that I see underlying the dispute, I see two general sets. Clearly, I support the treaty. I support what I would call the “aboriginal rights” set of beliefs. Let me quickly outline what those beliefs are, and what they rest on.

First, there's a belief, an acceptance, that aboriginal societies prior to contact were indeed meaningful societies composed of regular human beings who had the same sorts of notions of territorial land as other groupings elsewhere. They had laws and government and notions of how to govern their own affairs.

The second point is that the abilities of aboriginal peoples survived as rights after British sovereignty. British sovereignty did not erase those rights. In fact the British common law is seen as protecting native title.

Thirdly, in terms of continuity, those who support the Nisga'a treaty—and aboriginal rights more generally—perceive an essential continuity in most cases in terms of particular aboriginal peoples. There has been much change, but this change in terms of language, religion, and other things is not seen as destroying identity. Identity survives as change takes place.

Fourthly, the result of this is that today's aboriginal communities are indeed meaningful, legitimate claimants of the rights that they carried through contact.

In terms of detail, treaties are perceived as a matter of what the Supreme Court has recently paid perhaps more attention to, although not for the first time, and that's the honour of the crown. The crown is the entity that is negotiating these treaties, and there are certain stipulations as to what the honour of the crown entails: fair dealing, consistency, etc., with native peoples.

In terms of the more general perception of native peoples, race is not seen as a major significant factor. It so happens that the native peoples were of a different skin colour from the Europeans, at least. But had there been some group of whites with no connection to Europe living in some area here, they would be as aboriginal as anybody else, as the Sami in Norway and other countries in that part of the world are aboriginal there. Race is not seen as a consideration by those who favour aboriginal rights. I certainly would not be in favour of race-based government.

In terms of the issue of who is to approve the treaty, the view of those who support aboriginal rights in general is that the usual decision-making process should be followed, that it's not fair to change processes in midstream because you don't like what an outcome might be. Indeed, my view certainly is that a referendum among the majority would perpetuate and in fact endorse the very sort of control that was taken over native lands and their affairs without their consent in the first place. Furthermore, it would make negotiating an actual treaty very difficult. The natives probably wouldn't even negotiate if they knew they were facing a majority referendum, and government negotiators would not have much freedom to negotiate what they thought was a reasonable deal.

However, there is one circumstance in which I would support a referendum among the majority. If the native people of this province were first to hold a referendum in which they voted as to whether or not the newcomers had behaved in such a way as to entitle them to decide on how they, the natives, should use their property, in that case I would favour a majority referendum if the native referendum passed in the first place.

• 0955

Contrary to the set of ideas that I have presented—and I don't wish to speak for opponents of the treaty here—it's very clear that they don't share some or all of the values I have stressed. One of the very major points is that a very eminent figure in this province, none less than our chief justice, ruled or determined in his judgment on the Delgamuukw case that the Gitxsan and the Wet'suwet'en, in this case, had been primitive peoples. He used that word a number of times. He was impressed by their not having writing, not having the wheel. He was especially impressed by their not having horses. He mentions that six times in his judgment. But a point I have made earlier is that if one looks at Scotland, where the judge's grandparents came from, one indeed doesn't find any camels. Does this mean Scotland is a primitive place? I think not. You can see the point that I am making.

However, I believe that the notion—and it's a very sanctified notion—through our chief justice's... In fact he puts it in a better form than it has ever been put in before: they were primitive peoples, without government, without society. If one has that conviction, there is nothing else to discuss, because there were no abilities in the first place to carry over as rights.

Now, it's fairly taboo to explicitly state that the Indians were primitive and therefore don't have anything to carry forward, but I think that's often the underlying notion. Certainly there is the notion that there has not been adequate continuity. Indeed, lawyers opposing the native claim in the Delgamuukw case were at some pains to ask whether Indian witnesses ate pizza or drove motor cars. The notion was that if they ate pizza they were no longer Indians in some particular way.

Of course, the ultimate point is that many of the critics, in a really intriguing return or replay of history, are accusing or criticizing this treaty of being a matter of communalism or communism. I think “socialism” also means just about the same thing in this particular context.

In my view, the Nisga'a, whom I know reasonably well, are no more communistic or socialistic in that sense than, say, Mr. Manning's own church in Calgary. There is not a fundamental difference in terms of how people think and act as individuals among the Nisga'a than there is elsewhere.

Finally, in terms of the referendum, there is a view that the majority should decide. In my view, that is simply to deny that there is such a thing as a minority right. I think few of those who propose a referendum would favour referenda on individual rights, like the right to free speech, etc. Some would, but most would not. But group rights are seen in a different category. Again, I think this horror of communalism is still present.

Thank you.

The Chair: Thank you very much.

We'll go to our next witness, Mr. Foster.

Professor Hamar Foster (Associate Dean of Law, University of Victoria): Thank you very much. I'm an academic too, and I'm used to speaking in blocks of fifty minutes, so I'm going to do my very best to be as concise as I can. Like Professor Sanders, I have immodestly supplied the committee with thirty copies of something I've written on this. I hope it will be of some modest assistance.

I thank you for the opportunity to speak. I confess that I wasn't really sure what I should speak about in such a limited time under the topic of the Constitution. I tried to anticipate what some of the other panellists might say. As a result, I've decided to try to answer the question of whether the treaty is based on invented law, as someone suggested. Perhaps another way to put that is to ask how old and well established the legal principles are upon which this treaty is based.

I would submit to you that the treaty is not invented law. The legal principles reflected in it are as old as Spain's conquest of the Americas, and they may be found in decisions of the Supreme Court of the United States, the Supreme Court of New Zealand, and the Judicial Committee of the Privy Council—the highest court in the British Empire—that date from the 19th century, and indeed even earlier in some cases. Certainly they date from the Proclamation of 1763, which I'm sure you've all heard of and which forms such a central part of the Nisga'a petition to the Privy Council of 1913.

• 1000

That proclamation confirmed that the traditional territories of the several nations or tribes of Indians with whom the crown was connected was reserved to them and was relied upon by the U.S. Supreme Court in 1823, when that court said the Indian tribes were the rightful occupants of the soil, with a legal as well as a just claim to attain possession of it and to use it according to their own discretion.

Nine years later, in 1832, the same court said that land grants to European settlement companies in North America were understood to convey the title which, according to the common law of European sovereigns respecting America, they might rightfully convey and no more. This title was the exclusive right of purchasing such lands as the natives were willing to sell.

The court describes the tribes of North America as domestic dependent nations and describes the limited sovereignty they enjoyed as an inherent sovereignty that predates the United States constitution. Congress, the president, and the courts have repeatedly affirmed the government-to-government relationship this sovereignty entailed. Indeed, only a few miles south of where we are now, tribal governments, courts and police carry out their various responsibilities as they've done for years.

In 1847 the Supreme Court of New Zealand relied upon both the Royal Proclamation and the United States Supreme Court decision to which I've referred and concluded that aboriginal title cannot be extinguished, at least in times of peace, otherwise than by the free consent the native occupiers, and that principles such as this one were not the new creation or invention of our colonial courts but were among the earliest settled principles of our law. Obviously even in 1847 judges were sensitive to the charge of judicial activism.

That year, 1847, was only three years before James Douglas, in compliance with those principles, began making treaties on Vancouver Island. But as I think everyone knows, it was not long before the law in the books, to which I have referred, and the law on the ground began to diverge, especially in British Columbia. There's no time to talk about all the reasons for this. I think some of them are probably fairly plain.

Nonetheless, in a Canadian case that went to the Judicial Committee of the Privy Council in 1888—again, the highest court in the British Empire—that court stated that land subject to Indian title is not available to the Province of Ontario as a source of revenue until the land is disencumbered of the Indian title.

Obviously, with some few exceptions, that was not done in B.C. The province has certainly used the land as a source of revenue, and I think that phrase from the 1888 decision of the judicial committee goes a long way towards explaining much of the unrest that's happening in British Columbia at the moment with first nations who have no treaty but who claim aboriginal title. I think it goes a long way to describing why a treaty such as the Nisga'a treaty, which makes an attempt to clarify and particularize these general principles that date back 200 years, is so important.

I think it's also significant that only a year before the judicial committee made that statement, the Premier of British Columbia and the royal commission that first investigated Nisga'a complaints in 1887 told the Nisga'a that they had no right to a treaty and that the law and the new Canadian Constitution had no room for Indian title or self-governance. In my view, that was not true then and it's not true now, but soon people began to believe it was true.

But the basic principles were never expressly repealed, a fact first confirmed by the Supreme Court of Canada when the Nisga'a took their land claim there in 1973, and since confirmed many times over, although the courts have yet to rule on the self-government aspect of these principles. In the period between the rejection of the Nisga'a claim in 1887 and its judicial resurrection in 1973, many attempts were made to have it resolved by negotiation or to have it referred to the courts. The obstacle was nearly always the Province of British Columbia. I'll try to give a few brief examples.

The province's position after Confederation, that there was no aboriginal title in B.C. and that reserves should be very small, eventually led the federal government to disallow the B.C. Crown Lands Act on the grounds that it took no account of aboriginal title. Eventually Ottawa backed down and agreed to the creation of a reserve commission that would ignore aboriginal title and simply address the reserve question, but for a brief period the Crown Lands Act of 1874 was disallowed.

• 1005

Although aboriginal protests in the 1880s on the northwest coast, including Nisga'a territory, led to the royal commission I referred to earlier, neither B.C. nor Ottawa would permit that commission to entertain claims of title, for the reason given earlier, that the new Constitution and the law were not roomy enough to take account of Indian title.

In 1909, after decades of aboriginal delegations to Victoria, to Ottawa, to London, England, and even one to the Vatican, these delegations and unrest, in particular on the Skeena River, led the dominion government to commission a legal opinion on Indian title in B.C.

A lawyer was retained. He turned in a 100-page report that concluded, as the Supreme Court of Canada did 90 years later in the Delgamuukw case, that aboriginal title is a full property concept, that it's part of Canadian law, and that unextinguished title existed in B.C. The author of this report also opined that British Columbia would never agree to have this settled in a reference to the Supreme Court, so he recommended another way of trying to get the issue before the courts.

Nonetheless, Sir Wilfrid Laurier's government tried to get a reference. The deputy attorneys general of the province and the dominion government actually agreed on 10 questions to be submitted to the Supreme Court, but at the last minute the Premier of British Columbia, Richard McBride, withdrew consent because the first four questions dealt with the question of aboriginal title.

Laurier's government was commencing an action against a homesteader in the Skeena in 1911 to try to raise the issue of aboriginal title collaterally when his government fell in the free trade election in 1911 and was replaced by the Conservatives. At that point another compromise was made. British Columbia would still not countenance the discussion of aboriginal title, so a new reserve commission was created to adjust differences between the two governments, on the condition that aboriginal title would not be considered.

Aboriginal reaction to that, including reaction by the Nisga'a, led to the creation of the Allied Indian Tribes of British Columbia in 1916 and a further 10 or 15 years of attempts on two fronts to solve the issue. One was through negotiation, and the other was through getting the matter into the courts. The Nisga'a were at the centre of this movement, but the movement failed.

As the senior Indian affairs official in B.C.—a federal official—put it in 1925, the biggest mistake Canada had made was in not continuing the disallowance of the 1874 Crown Lands Act until some provision had been made for the cession to the Indian title.

Two years later, in 1927, the allied tribes finally got their hearing before a parliamentary committee not unlike this one, and the politicians decided there was nothing to the claim of Indian title in British Columbia. They also passed a law making further land claims activity effectively illegal. Characteristically, B.C. did not recognize the claims of the Nisga'a and the allied tribes and had therefore refused to attend these hearings.

I think the major result of the new law that had been passed was that for approximately 20 or 25 years a period of silence ensued insofar as non-aboriginal Canadians were concerned. The land claims issues that so occupied people's attention up to 1927 fell off the radar screen.

As early as 1909, the author of that legal opinion I referred to earlier complained, even then, that lawyers were woefully ignorant of the basic principles of Indian law, and as late as the 1960s the subject could not even be found in Canada's law schools. But we're here today because gradually these principles have been rediscovered.

The process began with the Calder case and culminated in the enactment of section 35 of the Constitution Act in 1982 affirming existing aboriginal and treaty rights and forcing cases such as Delgamuukw in 1997. These new decisions, which rely heavily upon precedents dating back to the Royal Proclamation of 1763, are therefore not invented law. If anything, they are recovered law, strengthened by the constitutional protection enacted in 1982, and they have been accompanied by repeated judicial exhortations to make treaties. Since 1982, these rights are constitutionally protected, and I think history shows they have to be.

• 1010

I have a number of other comments generally about the treaty itself, but I don't want to go over time, so I thought perhaps I would just conclude with what I think is one of the most important aspects of this debate, and that is that the treaty is something that has been negotiated and chosen by the Nisga'a people, rather than foisted upon them the way the Indian Act, residential schools, and reserves were.

In this regard, I'd like to conclude by quoting American historian Richard White. He said most historians agree that Indian policy has generally been the work of “decent white men trying to do what they regard as best”.

I know there are those who would disagree with that statement, but I agree with it. It has been the work of decent people trying to do, in the main, what they regarded as best. Yet the result has been systematic impoverishment and confiscation of Indian lands.

Richard White concludes:

Precisely because a lot of this has happened as a consequence of good... rather than bad intentions on the part of white policy makers, we should pause before prescribing solutions for Indians. What should give us pause are not their shortcomings, which are real enough, but our own shortcomings, which we have amply demonstrated... Indians cannot escape the rest of us, but they deserve to negotiate their own fate among us.

Thank you.

The Chair: Thank you, Mr. Foster.

Mr. Smith, whenever you're ready, it's your turn.

Mr. Melvin H. Smith (Individual presentation): Madam Chair and members of the committee, I first of all want to thank you for the invitation to appear before you today.

I have a brief, which is now being handed out to members of the committee. There are some additional copies for others in the room as well, including the media. I won't be able to deal in detail with my brief because of time constraints, but I leave it with you to read at your leisure, and I trust it will be helpful to the work of the committee.

I want to say at the outset that I represent no one other than myself at this hearing. I'm on no institution's payroll. I'm here because I have a passion for the issues that are under discussion.

Before speaking to several of the constitutional aspects of the Nisga'a Final Agreement—because after all, this is a panel to consider the constitutional aspects—I feel I must touch upon one or two of the broader aspects of the Nisga'a Final Agreement. You should know that I am opposed not only to the treaty-making process that has been established in the province of B.C., but I am equally opposed to the present government policy toward native people, which has resulted in third world conditions among many native people on and off reserves.

So please bear that in mind. I'm not against just the current treaty-making process as we have it. I'm against the status quo that exists in government native policy. And if I had time, I could show you that the present policy is nothing more than a continuation of the failed native policy in this country of the past 130 years.

If treaty-making was the panacea for the native people, why is it that the rest of the country, which is largely covered by treaties, hasn't reached the promised land on this issue? No, no, treaty-making is a symptom of the problem. It's not going to bring about a solution. But I can't go into that detail right at the moment. I just want you to know for the record that I'm equally opposed to the status quo, and in my paper, I propose a better way than what is contemplated by the treaty process.

As far as the treaty-making process, as we have it in British Columbia, is concerned, I am of the view that if this final agreement is an example of the 50 or more land claim agreements or treaties yet to be negotiated in B.C., then at the end of the exercise, British Columbians will wake up to discover that their federal and provincial governments have substantially altered forever the economic, social, and political fabric of their province. We will discover that those governments have greatly diminished the public land and resource base of the province, the greatest source of our wealth; they have turned over much of their taxing power to native bands; they have paid out billions of dollars in cash compensation; They have constitutionally entrenched a native-only commercial fishery; and they have authorized and financed an array of 50 or more ethnic-based governments whose laws, in some instances, will supplant federal and provincial laws.

• 1015

The federal treaty-making policy, first established in 1973, which this government in its folly in 1990 embraced holus-bolus, was originally designed to compensate native people for the loss of their traditional activities, but it has been expanded into a policy that now provides a cornucopia of economic and social benefits—lands, resources, taxing power, and self-government—all financially backstopped by the Canadian taxpayer. The whole process is driven by the unrelenting efforts of what has been called the Indian industry—the national native leadership, and the many lawyers, consultants, advisers, and academics, all government funded, who would keep it going in perpetuity. Overzealous bureaucrats and compliant politicians complete the loop, but the Canadian public is out in the cold.

Paternalism, telling us what is good for us, is now being visited upon us all. The people of British Columbia, indeed the people of Canada, deserve better. They deserve an opportunity to express themselves, and they haven't had it in this process to date. I don't care how many government officials will tell you about all the meetings that have been held, the public consultation and all the rest of it. I've attended those meetings, as have many of my friends. They go there with questions, seeking answers, and to provide input. And they don't get an opportunity to either get the answer to their questions or provide input. They come away with their eyes glazed over. “What was that all about? All they talked about was process and how we're going from step two into step three.” It's a wheel-spinning exercise. There's been no chance for the average British Columbian to have a say on this issue. And although I say I speak only for myself, I'm convinced the more I speak on this issue, the more my view is shared by more and more, if not the majority, of British Columbians.

[Applause from the audience—Editor]

The Chair: I would like our witness to be able to continue in his time.

Mr. Smith, I'll give you back the time. Thank you very much.

Mr. Melvin Smith: I have three constitutional issues that I want to raise, because this is a constitutional discussion.

First of all, we're told that this treaty is subject to the Charter of Rights, and much ballyhoo is made of a provision within the treaty itself, paragraph 9 of chapter 2, which says:

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

It is argued that that makes it abundantly plain that the Charter of Rights applies to all the laws that will be passed by the Nisga legislature once it's established.

Well, nothing could be further from the truth. Those words are nothing more or less than self-serving window dressing. There's no way anything short of the Constitution... And this is short of the Constitution, although it does have constitutional protection. It's the Constitution itself, and the Charter of Rights itself, that dictates and says what laws apply to it.

• 1020

In that connection, I refer you to section 32 of the Charter of Rights and Freedoms, which reads thus, on the application:

This charter applies to the Parliament and Government of Canada in respect of all matters within the authority of Parliament.

(b) To the legislature and government of each province in respect of all matters within the authority of the legislature of each province.

That's what the charter applies to—the laws of the Government of Canada and the laws of the Province of British Columbia. Are Nisga'a laws in either of those categories? I don't think so.

I doubt very much that the Charter of Rights applies. When the issue comes before the court, as it certainly will, a court will look at those few self-serving words in the treaty I've already referred to and simply say, “We're not bound by that. We're going to look to the charter. It tells us what it applies to and what it doesn't apply to.”

If there is any doubt, even if the charter does apply in the first instance, section 25 of the charter itself clearly negates the effect of its application because it says:

The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal people of Canada

On both grounds, the Charter of Rights more than likely—I would say the preponderance is overwhelming—doesn't apply to the laws to be passed by the Nisga'a. Anybody who says it does and points to this is merely pointing a salve to those who raise the issue. It is part of the paternalism to tell us all that everything is all right.

Second, the legislative powers given to the Nisga'a parliament, yet to be established, are unconstitutional because they amount to a diminishment of legislative power.

Professor Sanders, in his remarks, said the Indian Act could be amended to give the Indian bands more legislative power and nobody would suggest that is a constitutional amendment, and that putting it in the treaty amounts to the same thing, and that there's no constitutional problem. That is not the case, and I'll tell you why.

Everything in this agreement is locked in by section 35 of the Constitution Act, 1982. All of the rights given to the Nisga'a are locked in constitutionally because of section 35 and the interpretation of section 35 by the Supreme Court of Canada in the Sparrow case, the Delgamuukw case, and the fishing appeals.

This treaty gives 16 or 18 powers that are normally exercised by the legislature of British Columbia to this Nisga'a government. The legislature of British Columbia will never be able to retrieve those powers in the future, acting on its own. That's what distinguishes this from the Indian Act. You can give these additional powers under the Indian Act, well knowing that the Parliament of Canada can repeal those powers it gave under the Indian Act later on. But that is not the case. These powers are locked in, and in that respect this treaty amounts to the diminishment of legislative power by the sovereign Government of British Columbia and the sovereign Government of Canada. In that respect, this treaty is unconstitutional.

I could list the 14 powers that are given exclusively to treaty legislators. These include the power to write their laws on education, kindergarten to grade 12, and higher education, including universities; power over health services, children and family services, business trades and professions, land use, laws related to aquatic plant and wildlife entitlements—the list goes on.

• 1025

The point is that a government can do many things legislatively; it can do foolish things. It can give away vast tracts of land or large amounts of money, and the Constitution of the country won't stand in its way. But the Constitution doesn't allow a legislature to give away forever its right to legislate. That's precisely what the legislature of British Columbia has done in this part of British Columbia. If it's followed through in 50 other treaties, a great part of British Columbia will no longer be under the legislative jurisdiction of the Province of British Columbia—forever.

I'm not just some way-out goof who has dreamt this thing up. Alex Macdonald, for those of you who don't know, was a very distinguished member of Parliament from this province for many years. He then became a member of the legislature and was the attorney general for David Barrett in the NDP government of 1972 to 1975. He shares my view on the unconstitutional nature of the Nisga'a treaty and said:

...they [legislatures] cannot abandon forever even one iota of their constitutional powers—never. One judge put it this way: “Parliaments are omnipotent in all save the power to destroy their own omnipotence.”

This destroys the omnipotence of the Legislature of the Province of British Columbia in that part of the province, and by extension, if there are 50 more of these treaties, in that respect it's unconstitutional.

This is the first time a land claim agreement has ever included self-government. We have 14 self-government agreements in the Yukon, but they're outside the Yukon treaties; they're separate agreements. The reason for that is that they didn't want to constitutionalize the self-government provisions in case some changes had to be made further down the line. What they've done in the Yukon is perfectly constitutional because they've kept the self-government provisions outside of the treaty.

I urge this committee, in its report to Parliament, to urge the Government of Canada to sever from the treaty the self-government provisions, chapter 11, and have them put forward as a separate chapter. In that way, changes can be made as the system adapts.

Imagine the arrogance of current day treaty makers to think they are so omniscient they can put together a self-government—a new kind of government never before tried in Canada—and, before it is even tried, lock it in forever. If that isn't arrogance, I don't know what is.

I've spent a great deal of my time drafting legislation for the government, and I know how unforeseen circumstances arise after the legislation is drafted and in force. The legislature is constantly making amendments to their laws.

Suppose the Government of British Columbia comes along and says “In the public interest, we really shouldn't have given you Nisga'a this law-making power; we want to retrieve it.” It's not sufficient to say they can amend the agreement if the Nisga'a and the federal government agree. Suppose the Nisga'a don't agree and they don't see it that way and they want to maintain that legislative power. There's not a thing the Government of British Columbia can do about it. So this is a major fault within the treaty.

• 1030

I would appreciate a bit of indulgence with regard to your time. I should indicate that there was to have been a fifth panellist here today who very much espouses the views I take. He's not here, so I'd appreciate it, Madam Chair, if you'd give me a minute or two to complete my third issue.

The third issue is the undemocratic nature of Nisga'a government insofar as non-Nisga'a living on Nisga'a territory is concerned. There are a lot of what they call third-party interests within the Nass Valley right now. You may think, oh, the Nass Valley, that's that wilderness way up there; there's nobody else up there. What are we all worked up about?

I encourage you to get hold of the appendix volume of this treaty. I notice that the first volume, the treaty itself, is in abundant supply, but I haven't seen a copy of the appendix, and with respect, I doubt that members of this committee have even cracked open the appendix. If you do, you'll find a long list of third-party interests that already exist in the Nass Valley.

There's a map in the appendix volume that should be in the main volume, because you're told that the Nisga'a land is just this little area in green, 1,920 square kilometres, which, incidentally, is 17 times the size of the city of Vancouver. That's the area they get in fee simple.

But look at the area where they have legislative jurisdiction over wildlife and for other purposes. They have virtual control over the wildlife, particularly tree species, grizzly bears—environmentalists should love that—mountain goat, and moose, and they also have control over all the trapping and fishing. There are hundreds of traplines up there right now. This is the area over which the Nisga'a have some measure of control. Do you know how big that is? It's a third the size of Vancouver Island. That's not bad for 2,000 people who live in the Nass Valley, 40% of whom are under age.

I could show you another map that shows what they call the Nass Area, where under this treaty the Nisga'a have bivalve and special fishing rights. There it is. There are the Nisga'a lands, and there's the area over which they have control and rights over bivalves and certain other fish. There's the area over which they have wildlife rights.

But really the reason I refer you to the appendix is that it lists all the third-party interests.

My view is that as treaty-making takes place in the rest of the province, non-Nisga'a who live in this territory ought to have the right to vote. Here are the reasons. I've been through the legislative powers that are given to the Nisga'a parliament in this treaty, and they don't just relate to Nisga'a. Some people say that the lawmaking powers are just for the Nisga'a. That isn't true.

Here are some of the laws the Nisga'a will be able to make that apply to the non-Nisga'a in their territory. Non-Nisga'a residents will be subject to Nisga'a laws on the use, management, planning, zoning, and development of their landholdings. Non-Nisga'a residents will be subject to Nisga'a laws related to regulating, licensing, and prohibiting businesses, professions, and trades, including licence fees or other fees.

These are Nisga'a laws that will supplant the laws of the province. If you want to conduct a business up there, you won't be subject to the business laws of the province. You'll be subject to Nisga'a law. Non-Nisga'a residents in the area will be subject to Nisga'a laws of expropriation, not provincial laws.

• 1035

I'm almost finished, Madam Chairman.

Non-Nisga'a residents will be subject to the Nisga'a laws on public order, peace, and safety, not provincial laws. Non-Nisga'a employers will be subject to Nisga'a laws that are designed to accommodate Nisga'a culture, whatever that means. Non-Nisga'a residents will be subject to Nisga'a laws on the design, maintenance, construction, repair, and demolition of buildings. Non-Nisga'a residents will be subject to Nisga'a laws with regard to health services. Non-Nisga'a residents will be subject to Nisga'a laws with regard to child and family services. Non-Nisga'a residents will be subject to Nisga'a laws on post-secondary education and on the sale, possession, and consumption of alcoholic beverages, and they will be subject to penalties, fines, and imprisonment as provided by Nisga'a law.

Now, what's my point? It's this. Surely, in light of all of this, non-Nisga'a residents ought to have the right to vote for the members of the Nisga'a government that pass these laws to which they will be subject. It's a fundamental democratic principle.

If you say it's taxation without representation, they say there's no taxing power here against non-Nisga'a. Hold on a minute. There's a provision in here that says the Nisga'a can enter into an agreement with the provincial government to impose direct taxes—that's income tax, among others—on non-Nisga'a. They say, well, it isn't in the treaty; it might happen and it might not. Is there any doubt in your mind that if the Nisga'a sent a delegation to Victoria the day after this treaty came into force and asked to enter into an agreement with regard to taxing powers, it would be seriously considered, if not agreed to, by the Government of British Columbia? Of course it would be.

The Chair: Mr. Smith, I just want to let you know that Mr. Gibson, the other panellist, is coming this afternoon, so I can't give you all of his time. Thank you very much.

Mr. Melvin Smith: I appreciate very much the time you've given me.

The Chair: Thank you very much.

I would like now to go to our rounds of questioning. For the information of the panel, I'll just explain briefly that we have five-minute rounds. We go around the table through the parties on the first round and then alternate on the second round. Hopefully we'll have a third round, if we keep to our scheduled time.

The five minutes include both the question and the answer, so I would ask that both the questions and answers be brief. That will maybe allow for a second question in that time. Then other people can follow up. This seems to work well in pulling out a lot of information. So I'll keep that in mind. I will try very hard not to cut you off, but at the same time I will let you finish your sentence but not move on to a second thought.

Mr. Lunn, please commence.

Mr. Gary Lunn: Thank you, Madam Chair.

Thank you, panel.

Before we begin, there is one comment I want to make, and I think it's very important that I make it. Madam Chair, I know you have the authority to make this decision and we have no recourse, but I want to make two points with regard to this. One of them is that the people who are appearing before this committee are only those who have been invited. I think that is an absolute disgrace to the people of British Columbia, and I just want to tell you why.

They are not being allowed to be heard. There is lots of precedence for this to happen. I can tell you this. Two years ago I was in Sydney with the fisheries committee. Your colleague George Baker and other members of the committee were with us as well. We travelled to Atlantic Canada and British Columbia, and in every single committee meeting we had floor mikes, and we allowed the people to be heard.

As well, we have the power to allow the media in this room, including television. We don't need—

The Chair: Mr. Lunn—

Mr. Gary Lunn: I have this time, Madam Chair—

The Chair: Are you questioning?

Mr. Gary Lunn: I'm going to ask a question—

The Chair: Okay. Go ahead.

Mr. Gary Lunn: —and it's my right to make this statement.

We also have that power.

Two weeks ago I was in London with the finance committee. When Paul Martin was there, we had four TV cameras, four monitors, and a whole host of pyrotechnics. Yet we shut it down here, and I think that's a very wrong decision.

• 1040

Having said that, I will move on, because this is such an important debate. I'm going to direct my question to Mr. Smith. It's unusual to have four lawyers as witnesses, and three of them professors.

I'm sorry, Professor Paul. I thought you were from the university law—

Prof. Paul Tennant: No prejudice here.

Mr. Gary Lunn: We have one who's not, but we have three professors here as well.

Mr. Smith, Mr. Sanders, who is a professor at UBC law school, stated that the native people have a right to have title to their own property in their own community. At least in my studies in law school I've never believed that to be true. So I would like your comments on that.

Mr. Melvin Smith: I made a note of that when Professor Sanders mentioned it. It's not my understanding that the households the native people occupy on reserves are owned by them. It's far from it. In fact I think it's some sort of certificate of possession that they have. It's far less than ownership, and I'll tell you a clear indication of that, and the sad part of the reserve system, is that if they want to build a house there and raise a mortgage they can't do it.

Mr. Gary Lunn: They can't get a mortgage. Thank you.

Here's where I'm going with this. We would clearly all agree that what we've done with respect to aboriginal peoples in Canada for the last 100 has not worked. I think most members of this committee would agree with that. We see the poverty on the reserves; it clearly is not working, for a host of reasons. When I read into this agreement—and I've gone through it cover to cover—I get the feeling of the same philosophy here and that we're creating the Indian Act II.

Professor Sanders also talked about their jurisdiction over government. He basically said that the only areas they have jurisdiction over are areas in which—he named off a few—there would also be an agreement with provincial governments as well. In other words, in my viewpoint, we're creating a quasi other level of provincial government. I'd like your comments with respect to that.

More importantly, is this really following along the same philosophy, and is it going to help the Nisga'a people? Twenty years from today, are the Nisga'a people going to look back and find they are any better off? Will we have changed anything with respect to that?

The Chair: Go ahead.

Mr. Melvin Smith: I don't think we will be better off in 20 years' time, for this reason: we are following discredited policy. The native people themselves refer to the reserves as ghettos. Let's take that for granted. I'm prepared to accept their definition of ghettos.

Why are they ghettos? Because they're not subject to the laws that all the rest of us in Canada are. They in effect have been made wards of the federal government. They look to Ottawa for all their support. They don't reach out in the communities around them, and they're not encouraged to, and the communities around them don't look into them either. It's a very unhealthy situation. That's the reserve system. And what has it led to? It's led to a total destruction of self-reliance and self-initiative.

The problem with the present Indian policy is not merely alcoholism, drugs, poverty, poor housing, and all the rest of it. Those are merely symptoms of the larger problem. And the larger problem is that these people have been ghettoized and isolated from the mainstream of Canadian society.

Do you know what the treaty-making process is doing? It's making these reserves that are ghettos larger ghettos. That's what the Nass Valley will be, a larger ghetto. And the barriers between them and us that now exist because of certain provisions of the law—the Indian Act in particular—and the other barriers between native and non-native are going to be built still higher.

There are 250 pages of special rights and clauses and subclauses and all the rest of it. Do you know how large the treaties are on the Prairies? They are six pages. And the courts are jammed today, as we speak, with interpretations as to what those six pages mean. We don't need to talk about New Brunswick and what has happened down there in recent days. The dockets of the Federal Court of Canada are jammed with law cases on the interpretation of these old treaties, and it's time we put them to rest. What have we got here? Two hundred and fifty pages. Can you imagine how many law suits that's going to generate? Why, it's a perpetual feast for lawyers.

• 1045

[Translation]

The Chair: Do you have some questions, Mr. Fournier. Go ahead.

Mr. Ghislain Fournier: Madam Chair, first of all, I'd like to convey some regrets on behalf of my colleague and friend, Claude Bachand, who was called back to his riding on urgent business. Claude Bachand is the Bloc Québécois critic on aboriginal affairs. I'm here in his place, although truthfully, he is irreplaceable. He is an extraordinary man who loves his work, not to mention an extremely hard worker and an asset to the committee. I think Mr. Duceppe, the Bloc Québécois leader, had him pegged right. As the only Quebec member on this committee, I am mindful of my considerable responsibilities and I will try to prove myself worthy of the task, Madam Chair.

I've been with the committee since Monday and an amazing thing has happened to me. I've listened closely to the presentations given to get a clear understanding of our position, namely that we support this agreement. During my lifetime, I've had the opportunity and good fortune to negotiate collective agreements. In my part of the country, I was a union president and the head of a labour council with 12,000 workers. Negotiation, consultation and dialogue are fundamental to a democracy. Having acknowledged that aboriginals are a people, we must also acknowledge their right to their culture and language and their right to have the respect of all Canadian citizens.

While I listened to your excellent presentation, a number of questions came to mind. I'll put the last one to you, a question that concerns Mr. Smith's statement to the effect that the Charter of Rights and Freedoms did not apply to the Nisga'a agreement. I'd like to hear from the three other panelists, namely Mr. Sanders, Mr. Foster and Mr. Tennant, on this subject. Do they share this viewpoint?

[English]

The Chair: Professor Sanders, please go ahead.

Prof. Doug Sanders: Thank you.

Mr. Smith is correct in identifying that the language of the charter itself, section 32, would have the result that the charter does not apply to the laws under a treaty-based government. This is precisely the reason the section was introduced in the treaty itself, to make the charter apply. Without that section the charter would not apply.

Mr. Smith is concerned that courts might say that the treaty provision is ineffective in making this change. I've taught Canadian federalism since 1969, and followed many of the charter issues, and particularly aboriginal rights issues, in the courts. I think, to be completely fair to Mr. Smith, we have no kind of decision extant that deals with this or an equivalent kind of issue.

My own conclusion from my background is that the court would give effect to the provision in the treaty that made the charter apply. It would apply of course conditionally, and as Mr. Smith has pointed out, section 25 of the charter is designed to do that. It was agreed by all of the political parties at the time it was drafted, leading up to the 1982 amendments, that human rights norms should apply, but with some respect for the regime of treaty and aboriginal rights.

• 1050

[Translation]

The Chair: Do you have another question, Mr. Fournier.

Mr. Ghislain Fournier: I'd like to get the opinion of the other two panelists.

The Chair: By all means.

[English]

Mr. Foster, then.

Prof. Hamar Foster: Thank you.

I don't really have very much to add to that. I agree with what Professor Sanders has said. It seems to me that if there is a problem here—and I agree with Mr. Smith that there's an issue of interpretation here—it really relates to the amendment of the Constitution in 1982, which specifically protected aboriginal and treaty rights and gave them a certain amount of insulation from the charter. The treaty has tried to get around the problem of what section 32 says about the application of the charter by having the three parties specifically agree to have it apply. I agree with Mr. Sanders that a court will strive to find that is the case. But it's true that the charter, even if it does apply, respects aboriginal and treaty rights.

The Chair: Thank you.

Professor Tennant, if you will.

Prof. Paul Tennant: This is one time I'm glad I'm not a lawyer. I don't have a opinion on this.

The Chair: Okay.

Madame Hardy.

Ms. Louise Hardy: Thank you, Madam Chairman.

I'd like to thank our guests for appearing.

I would like to say, Mr. Smith, that I've read over your alternatives and how you would apply them. You say preferably negotiation, but you put a three-year limit on negotiation, and if they didn't agree with your terms then there would be an imposition of what you think would be good for first nations people, and particularly the Nisga'a. And you don't agree with the treaty process.

But I think I would agree with Mr. Foster, who says this is what has been negotiated over a hundred years by the Nisga'a, and I think we've made enough of our own mistakes to agree that the Nisga'a people have at least a right to negotiate what they think is best for them without our continuing to impose upon them what we think is good for them.

Mr. Melvin Smith: Is that directed to me?

Ms. Louise Hardy: Yes.

The Chair: Yes, Mr. Smith. Go ahead.

Mr. Melvin Smith: It's all in the viewpoint, isn't it? When push comes to shove, the sovereign governments in this country, according to the law as it now stands... I was surprised when Professor Foster said that the courts have yet to rule on the matter of self-government. That isn't true. The law, as we sit here today, on the question of self-government has been settled by the court of appeal in Delgamuukw. That's the law of the land on this issue at the moment. I'm not saying it won't be revisited perhaps by the Supreme Court at a later date. The Supreme Court dodged it in Delgamuukw, but they might deal with it in another case.

The law of the land, as we sit here today, is that there are two sovereign governments in this country, the government of the Parliament of Canada and the legislatures of the various provinces, and all legislative jurisdiction is divided in totality between those two levels of government. If there is to be a third order of government, in a constitutional sense, for the native people, then that will require a constitutional amendment. This document here can't be used as a back-door means to amend the Constitution.

So I would say this: It is highly desirable for there to be a negotiated settlement between the three parties. I very much favour that, but in the end, I think that the senior governments, the sovereign governments of the country, will have to take the bull by the horns and work out a settlement that is as amicable as can be worked out in the interests not only of the native people but of the people of Canada as a whole.

One of the faults of the present treaty process is there's no one who speaks for ordinary Canadians. The federal government acknowledges that it is in a trust relationship with the native people. It's acting in their interests. Who's acting in the interests of the rest of us? We surely can't look to Ottawa. And we can't look to Victoria either, because they're advocates for the native cause.

• 1055

What are they doing in Australia? They're legislating. They've passed a native title act and they're going to deal with the native people fairly. There are going to be compensation courts and so on.

Now, I realize there's section 35 of the Constitution, which complicates matters a bit as far as Canada is concerned. I fully realize that. Nonetheless, there's a lot that can be done even on the basis of the decision. There's regulation that can be made by government on the matter of aboriginal title. There are hoops that can be gone through, as set out in Delgamuukw and other decisions.

As I say, it's highly desirable to work out a negotiated settlement, but I don't have confidence in those at the negotiating table who are supposed to be representing the interests of ordinary Canadians.

The Chair: Ms. Louise Hardy.

Ms. Louise Hardy: From what I've seen, the problem with the treaty process is that they haven't been honoured. Treaties have been negotiated and the first nations people haven't been looked after by the Indian Act. I don't think anyone will argue about whether we should have the Indian Act or not. This treaty does get rid of the Indian Act and gives the first nations people a chance to make their own decisions.

Mr. Melvin Smith: Well, unfortunately it incorporates many of the Indian Act provisions into the treaty itself. The treaty is just the latest version of the Indian Act.

Special rights—what's wrong with the rights of Canadians that are available to all the rest of us, Mr. Finlay? You say nonsense.

Mr. John Finlay: Absolutely nothing.

The Chair: Order. Let's confine our answers to the person who posed the question, and not engage other members. They'll have their turn.

Mr. Melvin Smith: I heard him speak out.

The Chair: Oh, I see.

Let's go on. Mr. Keddy, it's your turn, please.

Mr. Gerald Keddy: Thank you, Madam Chair.

I'd also like to thank all of the interveners for their testimony here this morning, if that's the proper term.

As a lay person and a non-lawyer, I'd like to put on the record that it would be interesting to hear this argument to the full extent between lawyers about the legalese of this issue. But having saying that, there have been a number of statements made here this morning that, to my knowledge—and again I stress the fact that I'm not a lawyer—are wrong, and perhaps that will be proven only in a court of law.

But certainly the statement has been made about taxation without representation, and it's patently false. There is no taxation in this treaty without representation.

I'd like to make one other point. We have taxation without representation in Canada already. There are landed immigrants and people working in Canada on visas who have absolutely no right to vote for the Parliament of Canada, but they pay income tax, they pay civil and municipal tax, they pay all the taxes of this land. Now, they can share in many of the benefits of this land, but they pay tax without representation.

So there are a number of issues, and I hope we get a chance to get a couple of rounds out of this, because I know all members of Parliament have some questions. Certainly that's the first one, but I have a statement and a couple of questions.

If you look at the history of interaction between non-natives and natives in this country, between non-aboriginals and aboriginals, and look at what has happened so far—and I've said this at committee several times—there are only three ways that we can deal with first nations in this country.

We can deal with them through violent confrontation, and I think everybody would agree that's not acceptable.

We can go to the Supreme Court of Canada, which leaves questionable issues for everyone. Many times we are still to interpret to the full extent of the law the Supreme Court decisions, whether those are the decisions of Sparrow to Delgamuukw, Marshall back to Calder, and all of the decisions in between.

Or we can engage in negotiations in a treaty process and try to settle this issue in a fair and equitable manner. When you engage in negotiations, I hate to even use the term “winners and losers”, but you negotiate a settlement and you come up with something that's acceptable to all parties.

• 1100

But there are a couple of things about this treaty that need to be made clear. First, the Constitution of Canada applies, and I've heard from members of Parliament in debate in the House that this somehow changes the Constitution of Canada. To my information—and I would like to ask the legal experts here—it does not change the Constitution of Canada. It is protected by the Constitution, but is not part of the Constitution. There's a significant difference there, and the Charter of Rights and Freedoms does apply.

On taxation, which seems to be the big issue for everyone, there is no taxation in Nisga'a territory for non-Nisga'a. That taxation will be within the power of the Province of British Columbia.

So there are a lot of issues here that we need to deal with one at a time, and I'm not saying this is not without complication, but the Constitution issue is the one that I'd like to hear some comments on right now, perhaps from Mr. Foster, Mr. Sanders, and Mr. Smith, the lawyers.

The Chair: Okay. Mr. Foster.

Prof. Hamar Foster: There's a lot there, and I'll give others time to speak.

Mr. Gerald Keddy: Sorry.

Prof. Hamar Foster: No, I wasn't criticizing your remarks in the least, sir. Perhaps I can just address an aspect of your first question, and that is whether the treaty changes the Constitution.

In my view, it does not. What changed the Constitution, and arguably profoundly changed it, was the enactment in 1982 of section 35 of the Constitution Act of 1982, which affirmed existing aboriginal and treaty rights, and then subsequently included subsequent land claims agreements in that. In my view, that's clearly authority to proceed with the making of these kinds of agreements.

I think it crossed no one's mind in 1982 that to make a treaty would involve summoning first ministers conferences, as required by another section of the new Constitution, or submitting it to the amending formula in the 1982 Constitution. No treaties have ever been subject to that kind of procedure, before 1982 or after.

It remains possible that a provision of the Nisga'a treaty might be ruled subsequently by a court to be in some sense unconstitutional. I personally don't think that's going to happen. But if that does happen, the courts will be doing what they've been doing for over 110 years, which is deciding in a competition between two documents as to which one prevails.

The Chair: Thank you.

We're out of time for that round. You're going to have to come back.

Mrs. Karetak-Lindell, please.

Mrs. Nancy Karetak-Lindell: I was born in 1957, before my parents were able to vote in Canada. So were my three older siblings. We were then subject to laws of this country on which we could not vote, and that is in my lifetime. I feel assured that you will all be looking out for our interests, because we were not given the right to vote for the very policies that governed our lives.

When I learned the English language, again my parents had no say as to whether I could learn it or not. When I looked at the globe of the world and I saw how small England was, and they owned, or thought they owned, India and the Americas and all the little islands almost all over the world, I said, well, the arrogance of these people thinking they can be such a small population and control three-quarters of the world.

So I hope we've moved beyond that way of thinking and we can all participate in making decisions for ourselves as Canadians, and not be in courts that are already jammed with people who are suing each other because someone cut the tree on the wrong side of their yard—trivial cases. I'm sure we can all look into the court dockets and see who's suing whom, and it have nothing to do with native rights.

• 1105

I think we tend to take things out of perspective and not look to our own history as to what has already been done. In 1956, people were moved to the High Arctic before they had even had a chance to vote in Canadian democracy. We could not vote until 1960, which is not very long ago either.

I'm a little disturbed by some of the comments I hear. We're applying them only to this particular moment and forget what has already happened in history. Everyone tells us that we have to learn from history and not repeat the same things, but I guess that's up to anyone's interpretation of what mistakes we're making.

From the comments I heard from Mr. Smith, are you telling me that Nisga'a children, and I guess my children, being aboriginal, are not ordinary Canadians?

Mr. Melvin Smith: I wish you were; I wish in the full sense.

I quote Gordon Gibson—

Mrs. Nancy Karetak-Lindell: Well, I think I am, in my interpretation.

Mr. Melvin Smith: He was talking at the time of the Charlottetown accord, which had so many provisions in it, special rights. You can be an ordinary Canadian without having an array of special rights, page after page. In fact it would be preferable if you were.

Gordon Gibson said “The greatest gift in our grant is to make someone an ordinary Canadian. Why should the native people settle for anything less?” I feel strongly about that.

Mrs. Nancy Karetak-Lindell: Yesterday we talked about taking race out of the issue. Is that telling women's rights groups that they should disband whatever work they're doing because they have rights as has everyone else? Is that telling people with disabilities that we don't need to do anything different because they already have their rights? I'm not sure what you're telling me.

Mr. Melvin Smith: It's none of those things. But what it does mean is that the needs of those people with disabilities and those people who have their own particular and special problems can be met within the framework of the laws of Canada and the provinces, and I suggest, for the most part, native concerns can be met in that way too. Let's have the full range of federal and provincial laws apply to the native people before we run off and set up special legislatures.

I'm not talking about the legislature in Nunavut. The legislature in Nunavut is a publicly elected legislature to which everybody who lives in the territory is entitled to vote. I think that's great. I don't have any problem with that. It's a democratically elected parliament. I happen to have some questions as to whether we need it in an area with 23,000 people, but that's another issue. In terms of the kind of government and the democratic nature of the government, it is democratic.

But setting up special governments only to be voted in by a particular ethnic group, and so on and so forth, is going to balkanize this country, taking away the rights of the legislature and Parliament to legislate in those areas and giving it...

I happen to believe there's such a thing as native rights. I believe those native rights ought to be honoured, but I don't believe they extend so far as the inherent right to govern themselves. There's my essential problem. There's nothing in the Constitution that supports it, and in my humble opinion, there's no need for it. The special concerns of native people can be dealt with in the broad range of laws, provincial and federal, that governments are able to pass.

• 1110

The Chair: Thank you, Mr. Smith.

Mr. Gouk, go ahead, please.

Mr. Jim Gouk: One of our witnesses this morning, and I don't recall which one, mentioned the term “systematic impoverishment” in terms of how we've been dealing with native people up until now. In that sense then, I would assume that their intent and their desire is that the way we deal with native people in the future would remove that problem.

We're dealing primarily with land and money and the provision of certain unique rights. If money and land were the solution, then just a little bit east of me the Stony have vast tracks of land, forestry, oil. They harvest their forests by questionable methods, I might add. They have their oil wells. Thirty-three hundred people have an income of over $50 million a year, and yet many of them live in poverty. Beyond that, 5,500 people, the Samson Cree—the total number of the Nisga'a, although not that many Nisga'a by far live on the land—have over $90 million a year, and yet many of them live in poverty.

It was mentioned even locally by the native groups that own a good chunk of West Vancouver. On the cover of the provincial newspaper only a couple of days ago, it said that some people are living in rat-infested trailers despite the incredible wealth of that band.

So I would ask if we're moving in the right direction when we're really just going on with what is already being done and is not working.

Mr. Smith mentioned that it's necessary to negotiate. I think so too. And we've heard about the importance of negotiation from some of the other members here. We have in theory negotiated with the Nisga'a, and we've reached a tentative agreement, subject to ratification by Parliament, and now we're going to negotiate with the Gitanyow.

When we talked to the Gitanyow on Tuesday, they asked what we were going to negotiate since 80% of the land given to the Nisga'a was their traditional land. We asked them to come and negotiate with us while this was going on, and they didn't. And why would they? They have two levels of government already onside. So when we go to negotiate, there's nothing there. We're negotiating for land they've already given away.

So if this is such a good process, how are we going to make any headway if we follow a pattern of failure and we enter into negotiations one at a time without considering the needs of those who follow?

I would address this to Mr. Smith and to anyone else, for that matter, who cares to comment on it.

The Chair: Who would like to go first?

Mr. Melvin Smith: The treaty-making process in this province was set by a the B.C. task force on treaty-making back in 1991, or it reported in 1991. My good friend, Professor Tennant, was an adviser of that committee.

We were just starting on the recommendation exercise; we realized it could go on for some years. I think there were about 17 recommendations. One of the recommendations was that there wouldn't be a treaty finalized in this province unless the neighbours were happy with the boundaries set out in the treaty. In fact it made it very plain that a treaty would not proceed unless boundary disputes were first settled.

All of those recommendations were accepted by the government when they began the treaty-making process. Some say, oh yes, but the Nisga'a are outside of the B.C. treaty-making process. That's rather a disingenuous argument, I would suggest. The same principle ought to apply. And I think this committee should recommend that this treaty not go ahead unless the boundary disputes that exist up there, which became so evident before this committee a day or so two ago, are resolved in advance.

The Chair: Thank you.

Professor Sanders, please.

Prof. Doug Sanders: I'm concerned with statements that focus on failures and particular controversies, and the examples of the Stony and Samson in Alberta have been cited by the member.

• 1115

In my opening statement I tried to suggest the extent to which there has been an evolution, a change in the system that has occurred since 1960, when the vote was extended, with the open character of so many of the reserves. To pick one or two examples is to essentially stack the deck. I tried to give something of an impression of the kinds of developments that have occurred in British Columbia so that the community situation now is far more integrated into the provincial economy and society than it was 20 or 30 years ago. And there have been quite a number of successes. Nisga'a is designed to perpetuate not the bad old days but the positive elements of evolution that we have seen.

The Chair: We're into our second round now. We'll commence with Mr. Bonin, please.

Mr. Raymond Bonin: Thank you for your excellent presentations. They have been very helpful.

My question will be addressed to Professor Tennant and then open to anyone else. I hope there will be time for Professor Sanders to respond to Mr. Keddy's questions, because I know he would have appreciated more time to do that.

Professor Tennant, you addressed the issue of referendum. We know it is an issue with the opponents. We know the position of the opponents on their support for inherent rights and for minority rights. I've asked this question before: Can you explain to me how we can expect that inherent rights and minority rights, acquired rights, can be protected in a referendum by the majority without their consent? That issue has to be dealt with, so I'm interested if you or any others have anything to respond to on this.

Prof. Paul Tennant: I think the answer is perfectly straightforward. By definition, if a majority of the public can decide whether or not a claimed right is to be exercised, whether it's by the individual or by a particular group, then that is not a right, because a right is something one is enabled to do. One's ability to do that is protected by the law and by the authorities.

I used to raise the example in this sort of debate about how gay rights should be subject to a referendum. It turned out that quite a few of those who were opposed to native rights thought it should be subject to a referendum. That wasn't really the point. The point is that if it's a right, it's a liberty protected. We are not in a plebiscarian democracy, we're in a liberal democracy, which means in that context that the liberty of the individual... and we're now arguing whether or not a group should have certain liberties as well. That's the issue, and we don't have the agreement.

Clearly, there are many in this room who do have the view, which I characterized previously, that the majority can determine what minorities can do. That's an obvious point of view, but it in fact denies the validity of those rights, and that's what we're arguing about.

Prof. Doug Sanders: Mr. Bonin invited me to respond to Mr. Keddy's point in terms of the issue of whether or not we're facing a constitutional amendment here in some form.

The Constitution uses rather general language. Given that constitutions are expected to last a long time, of course, they use general language and they use categories. We see in terms of the constitutional category from 1867 of lands reserved for the Indians that this category has changed and changes every year. I will use one example of the surrender of reserve lands or the sale or transfer of reserve lands that still occurs to some extent. New reserves get established, old reserves get surrendered. The Indian population itself of course changes. The category remains the same, but the content of the category necessarily changes over time. This is simply a fundamental principle so that the Constitution can continue to operate.

• 1120

In terms of section 35, added in 1982, we now have for the first time a clear category of treaties as a constitutional category. It was accepted by various constitutional commentators from the beginning that this category was capable of change. New treaties could be negotiated and come within the category. Old treaties could be modified or altered by the negotiating process, and be terminated or limited to some kind of degree. What we are seeing here, then, is a new treaty. Of course it is coming into an existing category. It is also altering another category, and that is the category of existing aboriginal rights. This is the kind of constitutional change in the content of categories that is essential for constitutions to work over time.

The Chair: Thank you very much. You still have thirty seconds.

Mr. Melvin Smith: Is it a question of constitutional amendment, which you—

Mr. Raymond Bonin: No, my question to you is on the protection of inherent and minority rights by a referendum vote by the majority without the consent of the minority. That is a question that needs to be cleared up, and you have a position on that.

Mr. Melvin Smith: Every minority right is contained in the law, whether it's in the Constitution or whether it's in federal law.

Mr. Raymond Bonin: What I'm talking about is modifying the acquired rights of minorities by a vote from the majority.

Mr. Melvin Smith: I'm not sure that's the issue.

Mr. Raymond Bonin: Well, no, but that's my question.

Mr. Melvin Smith: That isn't the issue if it comes to a referendum.

Mr. Raymond Bonin: Why not?

Anyway, my time's up. Thank you.

The Chair: Thank you very much.

[Translation]

Go ahead, Mr. Fournier.

Mr. Ghislain Fournier: A consensus appears to be emerging. Since Monday, everyone who has come before the committee has talked about the need to negotiate. Everyone is in agreement on this point. Everyone believes in being virtuous, but not everyone is virtuous. If there is a consensus on the need to negotiate, then by all means, that's what we must do.

One vital principle must be borne in mind during any negotiation process: ultimately, there mustn't be a loser and a winner, but in fact two winners. When there is a loser and a winner, then the negotiation process has failed.

All of the collective agreements that I negotiated were not ratified unanimously, even though, to my way of thinking, they were sound agreements. One served as a model for the steel industry, and it was approved by the very narrowest of margins during the ratification process. As Mr. Sanders said, no doubt the negotiation process will be very difficult, but this is a challenge that must be tackled.

The witnesses touched on many subjects and I won't have time to get into every single issue. Mention was made of a referendum and of the courts.

Members of Parliament are democratically elected by the people, by Canadians. They are entrusted with the responsibility of taking action and moving forward on certain issues. Their mandate includes the right to negotiate without any encumbrances.

Let me tell you that within the next year or eighteen months, we will hold our referendum. The people will judge us on our actions and our achievements.

I have a question for Mr. Sanders. At the start of your presentation, you noted that the debate over the Nisga'a treaty had been intense and this controversy had sent a rather bad message to the Nisga'a, the message being that some Canadians do not welcome their growing integration into a larger society.

Would you agree with me that the best possible course of action is for nations to acknowledge and respect one another and to sit down together to negotiate an agreement?

Madam Chair, in Quebec, some people have told me...

• 1125

[English]

Mr. Gary Lunn: I have a point of order, Madam Chair. My apologies to my colleague and friend. This is extremely important to you and I think you're aware of this. We've just inquired on the terms of reference to this standing committee being in British Columbia this week, and it's our understanding—it's coming to us, and I think you may have it in front of you right now—that it very clearly states—

The Chair: I haven't even had a chance to read it yet. I'm trying to pay attention to the hearings first.

Mr. Gary Lunn: Well, this is very crucial. It very clearly states that this committee is to allow cameras in and to be televised.

The Chair: Okay. I'm going to read what is in front of me, because I think what is in front of me is exactly what I told you earlier. But let me read it before I comment on it, so we can get it correct. Just one moment, please, so I can read this.

What I have had faxed to me and had asked to be clarified earlier today I will read to you. This is the fax from what came out of Hansard:

Mr. Speaker, I believe that you would find unanimous consent for the following motion:

That the standing committee on aboriginal affairs be authorized to travel to Victoria, Vancouver, Terrace, Prince George and Smithers, British Columbia during the week of November 14 to 20, 1999, during its consideration of Bill C-9, an act to give effect to the Nisga'a Final Agreement; and

That during its consideration of matters pursuant to Standing Order 83.1, the Standing Committee on Finance be authorized to adjourn from place to place within Canada and to permit the television broadcasting of its proceedings thereon; and that the said committee be permitted in 1999 to make its reports pursuant to the standing order on or before December 10, 1999.

I will verify again, if people did not understand what that means, that the Standing Committee on Finance got an order from the House to go televised. This committee got an order from the House to travel. A committee is master of its own affairs, unless it's been ordered by the House.

If this committee—and the example is given of the fisheries committee earlier—had chosen its location and where it was travelling, this committee could have done a motion to ask to be televised. And in this committee we have a standing rule that we have 48 hours for notices of motion. Then arrangements would have been made to televise from gavel to gavel. There are certain rules about televising speakers, etc.

This committee did not get a standing direction from the House to be televised, and that is why I am being consistent. So that would have been out of order. But because I know notices of motions and points of orders would have continued all day long and disrupted our testimony, I thought I would clarify it correctly, as I have now done again.

Thank you.

A voice: What are you afraid of?

The Chair: There it goes.

I'm sorry, Mr. Fournier, I know you're in the middle—

[Translation]

Mr. Ghislain Fournier: As I was saying, some Quebeckers have said to me that we aren't welcome in Western Canada, in Vancouver and in Regina. I'll be happy to tell them that they are wrong. I spent three weeks out West two years ago. I spent a week in Regina and two weeks in Vancouver. I'm here this week in Victoria. Everywhere I've been, I've met some warm and gracious people. It's been a heartening experience.

In conclusion, Madam Chair, for Quebeckers, or at least for the Bloc Québécois, the Nisga'a treaty is proof that people can agree and respect one another. That is the message that the Nisga'a and indeed all Canadians should be getting, in my estimation. Would you care to respond?

[English]

Prof. Doug Sanders: Thank you.

One of the problems with the paternalistic history was the unilateral power that existed in the central government to dictate policy one way or another. Our experience in the post-war period has confirmed over and over again that this power cannot be used successfully in a unilateral manner.

In 1950, the federal government proposed a new Indian Act, which was met with national Indian protests that led to revisions, resulting in a somewhat changed document being enacted in 1951, and the government of the day making a political commitment that amendments would not be made again without prior consultation with Indian people. We see then the white paper of 1969, done without consultation, resulting again in national Indian protests and having to be withdrawn a year later.

• 1130

The experience has been learned a number of times—unfortunately it's often had to be relearned—that in dealing with collective groups like first nations as distinct peoples within the country, unilateralism simply does not work and is more likely to create a negative reaction on the part of the groups themselves. Therefore, to successfully manage relations and allow progressive development, it is necessary that there be a non-confrontational kind of atmosphere, and negotiations are the logical way. We have had some difficulty in terms of working out what language to use, and we have, I think, made some achievement in the wide use now of “first nations” as a respectful term, initiated by Indians themselves and now accepted by the courts and politicians.

The Chair: Thank you.

Mr. Finlay.

Mr. John Finlay: Thank you, Madam Chair.

I want to thank the panellists, because they're stretching my mind and my understanding, and I think we need that. I think the questioning and so on has been useful.

Professor Tennant, you said you were glad you were not a lawyer in this case because then you didn't have to answer a question... I guess lawyers are somewhere down the scale of public respectability somehow.

Prof. Paul Tennant: Not as far as politicians.

Mr. John Finlay: I don't know whether they're below politicians or above politicians. Sometimes they're below, sometimes they're above. Nevertheless, we politicians have feelings too, and when I'm told that you can't look to Ottawa and you can't look to Victoria, which is what Mr. Smith said, then I'm not sure what we're doing here. Maybe we'd better fold up Parliament and just let 13 people in white wigs look after things.

A voice: That's exactly right.

Mr. John Finlay: That would enshrine the status quo, but it wouldn't improve the lot of Canadians, nor would it improve the state of the world. You know, the East Timorese are inhabiting East Timor, and some big bad fellows from Indonesia decided that they have no rights, not to their land, not to life either. I'm a parliamentarian because I believe that the democratic process will result, with men and women of goodwill, in some improvement in the world view.

So, I'm sorry, but there is just no possibility that I'm going to accept, Mr. Smith, your attitude that you can't look to Ottawa and you can't look to Victoria. We are going to make the laws in Parliament, and if we have to correct the Supreme Court... We may have to correct the Supreme Court. I understand from Professor Sanders, Professor Tennant, and you, sir, that we're in an evolving process. At least I thought so. We're trying to evolve a better way of doing things. And if the court, the Constitution, or any previous law gets in our way, then I guess we're going to have to change it a little bit.

You know, the Magna Carta did a wonderful thing, and we've gone from there. We didn't atrophy at that point in time. So I would suggest, everyone, that we take a little broader view—don't be doom and gloomers—and that we understand that the Nisga'a people have accepted this. They will do their best to make it come out the way it should. And I propose that we give them a chance to do just that.

The Chair: Would you like a comment from any of the witnesses?

• 1135

Mr. John Finlay: I'd like any comments. I'm just saying if we cannot change the law as parliamentarians, being representatives of all the people of this country, how do we move forward?

The Chair: Mr. Finlay, there are two minutes remaining in your time. Would you like one of these witnesses to answer?

Mr. John Finlay: Yes, I would, if they wish.

The Chair: We'll hear Mr. Sanders and then, if there's time, Mr. Smith.

Prof. Doug Sanders: We've moved from a situation in which things were very polarized between first nations on the one side and Ottawa on the other, which I think was a rigid kind of situation that isolated reserve communities. This is one of the very negative parts of the history.

In the evolution that has been occurring, the communities are not so isolated but are very open to provincial services, provincial institutions—interaction locally. One of the most distinctive things about the James Bay and Northern Quebec Agreement of 1975 was its tripartite character involving the Province of Quebec. From the 1973 federal statement on land claims negotiations, other major federal policy statements, and the B.C. Treaty Commission Agreement, we have moved now to a normalization of the situation of Indian communities in which they relate to Ottawa and to the province.

One of the striking things about the Nisga'a treaty—one line at least that Mr. Smith would like—is the general statement that all federal and provincial laws apply, subject of course to the terms of the treaty. But it begins with a different first line than we've had in the former isolation of reserve communities from the provincial legal regimes.

The Chair: Thank you.

The time is now up, so we will go to the next round, with Ms. Hardy for five minutes, please.

Mr. Melvin Smith: Mr. Finlay took a shot at me, Madam Chair, and I thought I would get a chance.

The Chair: Unfortunately our time is up, and that's how we deal with it.

Go ahead.

There's another round.

Ms. Louise Hardy: I'd like Professor Tennant to talk a little more about the fear of communalism, as you put it.

In the last few days of the hearing, people have come up to me and asked why we don't just pay the first nations some money; just pay each individual some money and that would take care of compensation for them. There was a clear fear of communist ghettos being created. Some people thought that was funny, but it was a real, serious fear, and I'd like you to talk a little more about it.

Prof. Paul Tennant: I began by stressing that in the early years of British Columbia, with the three major racial groups being so much part of this situation, there was a profound concern about belief in communalism among the whites, who of course were stressing the enterprising individual as the way to make things the best in society.

It didn't only involve race. There were a couple of white minorities, Hutterites and Doukhobors, who were disenfranchised. All that differentiated them was that they were communal. Even when I was a child, Doukhobor children were forcibly taken from their parents to a residential school because the Doukhobors were seen as behaving in a communal way. This was really seen as the enemy within, in a very profound way.

That same value continues now among many people. It's certainly my perception that those who oppose the treaty and favour a referendum are still concerned about that sort of decision-making, as it is seen. I've spent a fair bit of time among the Nisga'a, and I don't really see them as communal in the way they operate at all. There's collective ownership, but companies have collective ownerships and we don't see that as a big problem.

In much of the consideration in this particular case, it's a real misfortune that there is no non-Nisga'a municipality in the Nass Valley. If we compare the Nisga'a treaty with the upcoming Sechelt treaty, there is a substantial municipality right next to the Sechelt First Nation. There was considerable participation by municipal and other non-aboriginal persons in the drafting of that treaty.

It so happens the provincial politicians opposed to the Nisga'a treaty at first assumed they should be saying the same things about the Sechelt treaty, which is broadly similar—there are some differences. But as soon as they found out that the local neighbours were in favour of that treaty, they stopped their criticism.

• 1140

There was no non-Nisga'a organized group of neighbours in the Nass Valley. Had there been, I'm quite confident they would have been in favour of the treaty, and that would have made this debate very different.

Voices: Oh, oh!

Prof. Paul Tennant: We have many people here—I assume a few are from the Nass Valley—who seem to know better than people who have been there what the situation there is.

A voice: Hear, hear!

Prof. Paul Tennant: The situation is it's important that treaties do involve neighbourliness between first nations and their immediate neighbours. Municipal officials should have a much more prominent part in treaty-making. There are good benefits on both sides.

As I often say to municipal officials, whom I speak to fairly often, “Look, first nations are going to have self-government. Why shouldn't municipalities have self-government?” There's much room for local autonomy in various ways in this province.

Municipalities and first nations should cooperate. I think the treaties would be more successful, because what the treaty process should be doing is building up understanding, trust, and relationships between neighbours. If the treaty were simply a ghettoizing mechanism, which it certainly is not, then it surely would fail.

We're building a new sort of British Columbia that recognizes the place, past and present, of aboriginal peoples as part and parcel of this province. There are those who find this a very disquieting, worrying situation, because it really spoils their view of how things should be.

The Chair: You have another minute.

Ms. Louise Hardy: No, that's fine.

The Chair: The next round is to Mr. Iftody, please.

Mr. David Iftody: Thank you very much, Madam Chair.

Thank you, gentlemen, for your presentations this morning. I would like to direct my questions to Professor Sanders to start, and then perhaps to Professor Tennant.

Paragraph 25(a) of the charter refers to rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763. I'd like you to comment on why the drafters of the charter at the time, during 1981 to 1983, including the amending conference in 1983, would have included and referred to the Royal Proclamation of 1763.

Professor Sanders, we use the words “existing rights”. Certainly that suggests to this committee, as it did to the drafters of the legislation, that at the time of the Royal Proclamation of 1763, when the British officers were here—the governors and other officials representing the crown—they understood there to be, even in abstract common law terms, an aboriginal title, or a common law usage of the land. It was incumbent upon the crown, the British crown, to recognize that, because if they could not or did not, it would be a breach of their own law.

So it was critical in establishing the new colony to have that included in that Royal Proclamation. The charter feeds from that as another element of the living tree, as we often refer to these things. The charter feeds from that.

So what we are talking about then is not the creation and giving of new laws and new powers at it were, but actually, as the language in the charter and other court decisions have reflected, it's basically a recognition of existing rights and fleshing those out. That's the first part of section 25. Could you comment on that?

The second one is the general powers that are described in very fearful and brooding terms—for example, child welfare, health, and these 14 areas of jurisdiction—which seem to be the apex of great, gut-wrenching anxiety.

Isn't it true that many first nations across Canada signed, with British Columbia in the late 1970s and with Manitoba in the early 1980s, protocol agreements for the delivery of police services, child welfare services, health services, and others? The sky didn't fall in. At least I haven't noticed that yet. Why would there be such a fundamental difference with the Nisga'a delivering those services?

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My third question is to Professor Tennant, and this is really the issue here.

You described this quite well in your analysis. We have the existing law of 1763 and the charter, and section 35 reflects what's happening in section 25. There are several references to this to make it clear. And in the bill itself, Bill C-9, in the House of Commons, it expressly states the charter applies. But you talk about the competing values, and you say somehow we really haven't come to grips with this, and for some reason we don't want to recognize this. I'd like you to go a little further, sir, and tell me why.

But I'd like to start with Professor Sanders, please.

The Chair: I'm afraid Professor Sanders is the only person who is going to be able to answer, because there will not be time for the others. I would encourage people to shorten their questions so that we can get a question and an answer in, because I do not, as a chair, enjoy doing this. I would prefer we have short questions and short answers.

Mr. David Iftody: I want everyone to know how fair the chair is, because she even cuts off the parliamentary secretary during my questions.

The Chair: Professor Sanders, you have about a minute to answer.

Prof. Doug Sanders: I will try to be brief.

The first question related to the reference in section 25 to the Royal Proclamation of 1763. The Royal Proclamation, from its clear words and from the historical information we have about it, recognized Indian territorial right as pre-existing, and it referred to Indian groupings as collectivities, as nations or tribes, who live under our protection. So there was an assertion of a suzerainty on the part of the colonial power, but not one that eliminated either the political or the territorial rights of the tribes existing.

The proclamation did not begin treaty-making. It formalized a process for treaty-making, treaty-making having been under way for a considerable period prior to that in North America.

For a long time there was a denial that the Royal Proclamation continued to have legal force in the country, and therefore it was quite important in 1982 that that heresy or revisionist legal history be dumped, and be dumped explicitly by a reference to the proclamation at that point.

The second question was in relation to the list of powers. I've already expressed my view that these are not out of line with existing law and practice. In terms of child welfare, I would note that here on Vancouver Island, the Nuu-chah-nulth Tribal Council have authorization to appear in court representing the provincial superintendent of child welfare in any cases that deal with Nuu-chah-nulth children on or off reserve. This represents one of the most advanced of the native systems in place, and it results from agreement between Nuu-chah-nulth, the provincial government, and the federal government. I've referred to the Indian Child Welfare Act in the United States, which has formalized this on a national level. We have tended to proceed tribal council by tribal council in this country, but it's well established.

The Chair: Thank you.

[Translation]

You have five minutes, Mr. Keddy.

[English]

Mr. Gerald Keddy: Thank you, Madam Chair.

I'd like to try to bring the questioning back to some of the more substantive issues. I realize all the issues are important, but certainly the Constitution and the explanations of it, for those of us without the legal background, is a challenging debate, and it's one there are a lot of opinions on. So from the beginning of dealing with this treaty, I've tried to break it into workable and sizable portions and deal with one issue at a time, whether that issue is taxation, the Charter of Rights and Freedoms, or the Constitution.

A comment was made earlier about whether or not some Nisga'a rights will exceed provincial rights. Each and every one of those rights can be dealt with in its own time and its own place, dealing with the material or the information it's concerned with.

I'll take one example, because we've just discussed it. In paragraph 89, under “Child and Family Services”, it says:

Nisga'a Lisims Government may make laws in respect of child and family services on Nisga'a Lands, provided that those laws include standards comparable to provincial standards intended to ensure the safety and well-being of children and families.

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So it very clearly states in this treaty that the Nisga'a government can't make laws that are less restrictive or less protective of children than those of the Province of British Columbia.

I think you have to look at these 14 or 17 rights—whichever amount you want to believe—examine them one at a time, and understand what the jurisdiction is. In this case, the jurisdiction is simply that the Nisga'a will have responsibility for child and family services. However, they have no right whatsoever to make laws that are not as protective of families and children as those of the Province of B.C.

This is the type of dialogue and debate that we should be pursuing on this treaty. We should take every issue one at a time and go down the list.

There was another statement made. I want to go back to fee simple property ownership. I know the committee gets tired of listening to me talk about it—well, they get more tired listening to me talk about fish—but fee simple property ownership is near and dear to my heart because I'm a farmer and I fully understand the history and ownership rights of farmers. I guess I can explain that a little more: I'm a sixth generation farmer on sixth generation land.

What happens when the Nisga'a own the land fee simple? This debate has been about wanting the Nisga'a to have the same rights as we have somehow... it's the us and we again. Actually, they will own their land fee simple. There's room within the treaty so that all the leaseholdings, the houses that are owned in common with the Nisga'a today, can be owned fee simple—

Mr. Melvin Smith: Never.

Mr. Gerald Keddy: The property will be owned fee simple by the Nisga'a, the same as the City of Victoria or the City of Vancouver or the Municipality of Chester in Nova Scotia, which I happen to live in.

For the Nisga'a, as far as voting and property rights are concerned, if they sell their property to a non-Nisga'a—a non-Nisga'a like me or anyone else has an opportunity to buy that property because the treaty fully allows that—the Nisga'a lose the right to tax it. So there's no taxation without representation and there is a fee simple property ownership.

I know I didn't leave much time, but I'd like some of the panel to comment.

The Chair: Okay, just for a minute. Choose one person.

Mr. Gerald Keddy: Go ahead.

The Chair: Go ahead, Mr. Smith.

Mr. Melvin Smith: There's no representation. Forget the taxation bit.

Mr. Gerald Keddy: No, I can't. There can only be—

Mr. Melvin Smith: Well, just a minute. I specified in my opening remarks the laws that would apply to you as a non-resident, a non-Nisga'a, on that territory. If you bought that piece of property you just talked about, as a non-Nisga'a you would be subject to Nisga'a-made laws on a whole range of things. I listed them. Well, surely you ought to have a say in the election of the government that passes those laws that apply to you. I mean, that's fundamental democracy.

Mr. Gerald Keddy: Excuse me—

Mr. Melvin Smith: Fundamental democracy—

Mr. Gerald Keddy: —but it's not fundamental democracy.

Mr. Melvin Smith: Of course it is. It's Magna Carta and all that.

Mr. Gerald Keddy: That's where it started.

Mr. Melvin Smith: We have been—

The Chair: Let's have just one person finish.

You have about five seconds to wrap up, Mr. Keddy.

Mr. Melvin Smith: There will be a tax increase—

The Chair: Please. Mr. Keddy has the floor.

Mr. Gerald Keddy: Yes, and there needs to be a taxation agreement, and that needs to be discussed in the full light of day so everybody has an opportunity to understand it. However, we already tax people in this country without giving them the right to vote, and we do it in a number of areas.

The Chair: Mr. O'Reilly, you have the pleasure of the last five-minute round, I believe.

Mr. John O'Reilly: Thank you very much, Madam Chair.

I want to first of all thank the witnesses for attending. It's a very enlightening process.

I want to give Mr. Smith an opportunity to reply. I know he's being frustrated, in his own mind, by not being able to reply to some of the questions, so I want to make sure that I direct some of my comments. I'll keep them very short in view of Madam Chairman's recommendations.

The Canadian Association of Municipalities is right now contemplating bringing forth a constitutional amendment to allow them to be able to have more powers under the Constitution—which they don't have now. First of all, Mr. Smith, are you aware of that? Second, would you support it?

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The Chair: Mr. Smith.

Mr. Melvin Smith: Mr. O'Reilly, I've been in federal-provincial and constitutional negotiations since 1960. The municipalities were putting forward the same proposition as far back as that. I'm not against it. I'm not talking down to it at all. I think it should be considered. They don't have any constitutional status at the present time. But the only way it could be achieved would be by an amendment to the Constitution to give them that “third order of government” status.

That's what I say about this as well. The only way we should give self-government as provided in this treaty is by an amendment to the Constitution.

I happen to be the author, along with one other, of the amending formula to the Constitution, which was negotiated in 1982. There is no way that section 35, which was also settled at that time, was ever designed to allow an amendment to the amending formula—which is essentially what proponents of the treaties are suggesting. They're suggesting that the inherent right to self-government is incorporated through section 35.

It can't possibly be that, because section 35 is not an amendment to the amending formula of the Constitution, nor could it ever be, because it was not approved by ten provinces and the federal government. It was approved by nine provinces and the federal government. Therefore, it can't amend the amending formula—kind of complicated stuff.

I think the municipalities may have a case, and I hope they put it forward in proper circles. If it's duly considered to be a good case, then put it to a constitutional amendment, which in British Columbia would not go ahead unless you had a favourable referendum vote by all the citizens of British Columbia.

Voices: Hear, hear!

The Chair: You have more time, Mr. O'Reilly.

Mr. John O'Reilly: Perhaps I could invite Professor Sanders or Mr. Foster to comment on that.

The Chair: Mr. Foster, go ahead.

Prof. Hamar Foster: May I expand the comment a little?

I've been sitting here listening for some time now, and it strikes me that a couple of things are emerging here that divide those of us who support the treaty and those of us who do not. This is only my opinion, but I get the very strong impression that those who are worried about this treaty are very much in favour of the Nisga'a choosing their place among us as long as the Nisga'a choose more or less what these people want, what they see as the best way to go. This is coming out in the remarks about collectivism and just about everything else.

I think that's a division between the supporters and the opponents. I think it's very clear that those who are supporting this treaty are deferring, in a sense, to the constitutional regime set up in 1982 whereby these three parties could try to negotiate within the umbrella of section 35 and take a few risks... that perhaps if the Nisga'a have this much input into what they want, it might be better than 100 years of giving them no input whatsoever.

I think the heart of it is section 35. With the greatest respect to Mr. Smith, he gets a little tone in his voice when he mentions that section. When he tells you there is no room for this kind of change that the treaty creates or puts into force, he is thinking in terms of the 1867 Constitution. He's thinking of 1991-92, the provinces, the feds. Section 35 and Delgamuukw—

[Editor'Note: Inaudible]

Mr. Melvin Smith: —

The Chair: Please, Mr. Smith, you don't have the floor. You've had the floor. Mr. Foster has the floor.

Go ahead.

Prof. Hamar Foster: Mr. Smith is right. That is what the court of appeal said. The Supreme Court of Canada has not addressed that issue. I think it's very significant that in one case—Pamajewon—they said they would consider the question of self-government and assume it existed for the purpose of doing that case, and then said, well, it doesn't cover casino gambling. Fair enough.

But in the Delgamuukw case they had the court of appeal decision before them, saying 1991-92, federal-provincial, no room for native self-government, and they explicitly refrained from deciding that. They could have decided it. They said there just wasn't enough information in front of them and then they told the parties to go back and negotiate.

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It can't be said strongly enough that this treaty conforms with what the Supreme Court of Canada said in Delgamuukw. They said they would only consider self-government in the context of a particularized and clear statement of what this right would be. I think the Nisga'a treaty is a response to that statement.

Now, neither Mr. Smith nor I know if section 35 contains the right to self-government, but it's certainly not clear that it does not. The Supreme Court of Canada had an excellent chance in Delgamuukw to say that it does not.

I think those are the two things that come to my mind after three hours of this exercise, and here are the real issues. First, do the Nisga'a get to choose only what we approve? Second, just what does section 35 mean, and does it make a change in our Constitution, bringing us back to the basic principles of the Royal Proclamation or not?

The Chair: Thank you very much.

The time is finished. It remains for me, on behalf of all the committee members, to thank you very much. You've contributed greatly to this discussion. You've given us some areas... and you know that this is an area we're concerned about, that we want to be able to understand. We have another panel scheduled for next week. The whole schedule is not totally out there yet, but we have two more constitutional people talking to us next week. I think your discussion today has helped us to maybe frame more questions for them. I think that's very beneficial.

I also want to thank the audience today. I'm glad this is a public meeting so that you can be here and listen to this discussion. I remind any member of the public that if they'd like to place any brief with the clerk, they may do so.

To my committee, our starting witness this afternoon, Minister Lovick, will start at 1.15, which was the originally scheduled time. He cannot be here at 1 o'clock, so we will hear him at 1.15 and then go through the afternoon. We'll return here at 1.15. Thank you very much.

The meeting is adjourned.