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

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[English]

The Chair (Mrs. Sue Barnes (London West, Lib.)): Welcome to this afternoon's meeting number 12 of the committee.

Minister, we have members of Parliament from across the country here. All are members of the Standing Committee on Aboriginal Affairs and Northern Development. We welcome you among us today to give your presentation.

The order of the day will continue with Bill C-9, an act to give effect to the Nisga'a Final Agreement. The minister will be here until approximately two o'clock, so that should allow us a good round of questioning.

We'll allow you to start. Please introduce the person accompanying you.

The Honourable Dale Lovick (Minister of Aboriginal Affairs, Government of British Columbia): Thank you, Madam Chair. I'm delighted to be here and to introduce Mr. Pat O'Rourke. Patrick is an assistant deputy minister in the Ministry of Aboriginal Affairs. He has also been on the Nisga'a negotiating team for British Columbia from the beginning. He has given about six years of his life to Nisga'a, and there is no question that hasn't been asked of Mr. O'Rourke to this point that he cannot answer. So if we get stuck, I'm pleased that he is here to assist.

The Chair: Thank you very much. Minister, commence with your opening statements as you wish.

Mr. Dale Lovick: Thank you, Madam Chair.

As Minister of Aboriginal Affairs, I welcome the opportunity to appear before the Standing Committee on Aboriginal Affairs and Northern Development and to give support on behalf of the Province of British Columbia for the passage of the Nisga'a Final Agreement.

Giving effect to the agreement and making it a reality on the ground represents an important point in the history of British Columbia and Canada. It represents our reconciliation with the Nisga'a people and establishes a new relationship with them. The Nisga'a Final Agreement is also the first modern treaty in British Columbia.

The key principle of the bill being discussed today can be summarized in one word—reconciliation. In making a treaty with the Nisga'a Nation, and for that matter with other first nations in this province, we are attempting, at long last, to reconcile the prior presence of aboriginal people with crown sovereignty.

The reason we have to talk about reconciliation, as most of us know, is that with only a few exceptions, treaties were not made with first nations in B.C. The Nisga'a treaty is a first step in remedying that situation, and that step is long overdue.

As one of the principals in the B.C. Treaty Commission treaty process, the province has chosen the path of negotiation to resolve outstanding issues with first nations. We believe all of us will reach our goals by sitting down at the negotiating table, rather than by resorting to conflict and litigation.

The Delgamuukw decision has clearly heightened the importance of treaty negotiation. As we all recall, in Delgamuukw the Supreme Court effectively told the governments of British Columbia and Canada to negotiate with first nations to resolve land claims, and not expect the courts to solve those problems.

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The Nisga'a have been trying to negotiate a treaty for 111 years. Canada came to the table in 1976, and British Columbia, though invited, did not join the table until 1990. The tripartite negotiations happily have borne fruit, and thus six years later we have an agreement in principle.

What makes this treaty so significant and so unique, in my mind, is that it takes undefined rights that are now constitutionally protected, and defines and codifies those rights in a treaty. Moreover, the treaty contains an exhaustive list of rights the Nisga'a have, and any rights not outlined in the treaty are released by the Nisga'a. The purpose of this is to provide certainty and finality.

The treaty is also a means to assure non-aboriginal people that these are the specific and entire rights of the Nisga'a people. It also lays out the boundaries of the Nisga'a territory. That is no small achievement; indeed, it is a huge achievement.

Because members of the committee will now have some fairly detailed knowledge of the agreement, there's no need for me to summarize its contents, even if that were possible in the short time I have here today. Instead, I first want to respond to some of the arguments against the treaty that have been raised, and second, look at some of the myths about the treaty that have been circulating for the past many months.

The first argument concerns overlap, more particularly the issues raised by the Gitanyow in their presentation to the committee a few days ago. The Gitanyow call for a suspension of the effective date of the treaty until overlap issues are resolved or until the Gitanyow have a treaty. They also ask that a process be established involving the Gitanyow, the Nisga'a, B.C., and Canada, in an effort to resolve Nisga'a-Gitanyow conflicts.

In 1998, I want the members of the committee to note, the Gitanyow sought a court declaration that the province could not enter into a final agreement with the Nisga'a prior to the conclusion of negotiations with the Gitanyow. However, the court dismissed that claim last June.

The Nisga'a Final Agreement also clearly states that it does not affect the constitutionally protected rights of any aboriginal people, other than the Nisga'a. There are also provisions and remedies in the agreement to address aboriginal rights of other first nations. Under the general provisions section, paragraph 33 and paragraph 34, if the courts were to find that the treaty affected the rights of other aboriginal people under section 35 of the Constitution Act, 1982, then that section of the treaty would no longer be operative, and best efforts would be made to amend the treaty to remedy or replace the provision.

The province's position on overlaps is consistent with the 1991 B.C. comprehensive claims task force, which recommended that first nations should resolve overlap issues among themselves. It is worth noting that the Nisga'a Tribal Council has a long history of good faith efforts to resolve overlap issues with neighbouring first nations.

The Nisga'a and the Tahltan reached agreement on the northern boundary in 1977; the Nisga'a and the Gitxsan signed a protocol agreement in 1995; and the Nisga'a and the Tsimshian signed a memorandum of understanding in 1996 to resolve overlaps. The Nisga'a, moreover, have actively worked with the Gitanyow to attempt to resolve the overlap issue a number of times in the past ten years.

B.C, for its part, has been actively involved in an ongoing effort to facilitate discussions between the Nisga'a and Gitanyow and has supported the mediation efforts. We remain committed to the Gitanyow negotiations and are working with Canada to prepare a land and cash proposal, which is a significant step toward reaching an agreement in principle. We are optimistic that proposal will be made at the end of November.

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The second issue I want to deal with is the notion that there has been no, or not enough, consultation.

Voices: Hear, hear!

The Chair: Order.

Mr. Dale Lovick: Welcome to real democracy.

Let me put a few facts on the record for the benefit of the committee.

When our government announced a date for ending the Nisga'a debates, the government house leader welcomed input from all members of the Legislative Assembly on how much debate was required and whether extended hours of sitting were required. The opposition did not respond to the request.

I would also note that Bill 51, the Nisga'a Final Agreement Act, had the longest debate on any piece of legislation in the history of this province—116 hours in total. Before and after the Nisga'a agreement in principle was signed in March, there were 450 meetings with advisory groups and the public. A legislative committee was also established, and it examined issues arising from the AIP and held 31 public hearings in 27 communities around B.C. from September 1996 to March 1997.

In the nine-month period leading up to the ratification of the Nisga'a Final Agreement in the B.C. legislature, tens of thousands of British Columbians requested copies of the treaty, or called the ministry's 1-800 line to ask questions or make comments. In that nine-month period, there were close to 20,000 calls to the ministry's 1-800 line, and more than 250,000 visits to the ministry websites. I would call that very significant consultation.

I want to turn now to the issue of referendum, an issue that was canvassed at great length during our debate on the Nisga'a Final Agreement in British Columbia. The basic pro-referendum argument is that an issue as important as this one ought to be decided by “the people”. Elected legislatures, presumably, do not have the right to make such decisions.

In response, I would offer just a few points here; many more could be adduced. When B.C. joined the Nisga'a treaty negotiations in 1990, the government of the day argued or agreed that the province would ratify the treaty in the legislature. Never, in all the years of discussion, was the notion of referendum ever raised. Changing the rules now, at the very end of the process, would leave the province and Canada open to very legitimate charges of having bargained in bad faith. The Nisga'a would have every right to walk away from the treaty process and turn to the courts, which, I would remind the committee, have already ruled that aboriginal people have rights to the lands.

There is also a very real possibility that any decision imposed by the court would be more costly and would not build in protections for non-aboriginal people of the kind we see in the Nisga'a Final Agreement.

Violating the terms agreed to since 1990 would also send a clear signal to all first nations in this province that there is really no point in negotiating with government. In short, the whole treaty process could collapse, plunging the province into a quagmire of litigation and conflict.

Finally, I would point out that minority rights cannot and should not be decided by majority votes.

I want to turn now to three myths about the Nisga'a Final Agreement. The first one refers to Nisga'a government and what is called a race-based enclave. Let me be very clear that the Nisga'a Final Agreement does not create a race-based enclave.

Voices: Oh!

The Chair: Order.

Go ahead, Mr. Lovick.

Mr. Dale Lovick: I will resist the temptation to respond to the noise in the cheaper seats.

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With the Nisga'a treaty, provincial and federal laws will prevail in the event of a conflict in most areas. We have agreed that in some areas, including those integral to Nisga'a culture, Nisga'a laws prevail, and that in all areas, including those integral powers, the Nisga'a government will not have exclusive jurisdiction. Rather, the jurisdiction will be concurrent with federal and provincial laws.

In fact, the treaty gives the Nisga'a the usual powers of any municipal government—traffic, land use, zoning, and police. Any laws created by Nisga'a authorities must conform to federal and provincial standards. If there are problems, federal and provincial laws take precedence.

Nor is British Columbia giving up any powers; just the opposite. For the first time, such important provincial laws as the Wildlife Act, Highways Act, and Schools Act will now apply to people who used to be exempt because they were governed under the federal Indian Act. In Nisga'a territory, laws relating to justice, health, education, social services, and environmental protection must be in line with provincial standards. In an emergency—and that could be anything from a forest fire to protecting a child—Canada and British Columbia have the full power to act. The only real difference is that the federal Indian Act will no longer tie the Nisga'a to the federal government's apron strings. The agreement allows them to manage their own local affairs and maintain their culture.

That leads me to the self-government provisions of the treaty, the sticking point, I think, for opponents of the treaty.

First, let's be very clear that the existing system has worked neither for aboriginal people nor the rest of us. There is evidence to show, however, that we can do much better and that the key to improving conditions for first nations people is greater self-government.

I want to refer the committee to a paper published by Michael Chandler and Christopher Lalonde of the University of British Columbia. Their paper is entitled Cultural Continuity as a Hedge Against Suicide in Canada's First Nations, and it should be required reading for the committee. The premise is that increased control by aboriginal communities over their own social and economic affairs can lead to improved health.

One of the key indicators of health and well-being of aboriginal people and their communities is the incidence of suicide. As I am sure the committee members know full well, suicide rates for status Indians, especially youth and younger people, are as high as six times the rate for non-native persons.

I'll give you a quick summary of the study's conclusions.

Some first nation control over policing and fire services resulted in a 20% reduction in the relative risk of suicide. Some first nation control over health care resulted in a 29% reduction in the relative risk of suicide. Community-based land claims initiatives—initiatives—resulted in a 41% reduction. Some first nation control over education resulted in a 52% reduction. Some form—and here's the key—of self-government resulted in an 85% reduction in the relative risk of suicide.

The message is pretty clear. If we as non-aboriginal people want to do our part to assist aboriginal people in undoing the damage of the past, what we must clearly do is get out of the way and let them take charge of their lives, their communities, their futures.

I also want to refer to another myth, the myth that the Nisga'a Final Agreement is a template for all treaties in the province. Let me just say this: All first nations communities are different and have very different local interests and needs, and as the local circumstances of each first nation will be different, so too will each final treaty.

I'm not going to take up more time on that, because I see I'm pushing the clock. I simply wanted to make that point.

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The third myth is that B.C. can't afford the treaty and Canada can't afford the treaty.

Last March, independent consultants Grant Thornton concluded in a report that settling aboriginal land claims will bring a net financial benefit of between $3.8 billion and $4.7 billion to British Columbia over the next forty years. The Nisga'a Final Agreement, the report also said, will have a $188 million net financial benefit to B.C.

The Nisga'a own source revenue agreement sets out how the Nisga'a will contribute to the costs of their Nisga'a government, and has an initial term of 12 years. The proportion of the costs of Nisga'a government and services paid by British Columbia and Canada will reduce, over time, as the Nisga'a contribute from tax and fee revenues, from interest on treaty settlement payments, and from business and investment activities, including natural resource management.

It's not true that there is a lack of a timetable for Nisga'a self-sufficiency. Past government policies have relegated aboriginal people to marginal reserve lands, destroyed their traditional society and economy, and created a cycle of poverty. We all know that. Unlike the current reserve system, this treaty gives the Nisga'a the opportunity to manage resources on their own lands—subject, of course, to B.C. and Canadian laws—thereby offering a real opportunity for the Nisga'a people to build an economic base, to become self-reliant, and to participate on an equal footing in Canadian society.

Obviously, no one can say that this will happen at such-and-such a time and on such-and-such a date, but we can set a timetable for the financial settlement aspects of the treaty. This timetable is clearly laid out in the treaty and the accompanying own source revenue, fiscal financing, and taxation agreements.

There is also one cost that the opponents of the treaty and its critics haven't said much about, and that's the cost of doing nothing. British Columbia is already paying that price. We're paying that price through marginalized communities with endemically and systemically high rates of unemployment. We're paying that price through lost investment, lost employment, lost opportunities.

The cost is huge. Indeed, it's estimated that something like $1 billion a year is lost to this province in investment alone.

The Nisga'a Final Agreement provides a clear and ringing signal of hope, it seems to me. It shows that issues we once thought were unresolvable can indeed be resolved—through negotiations. They can be resolved peacefully and they can be resolved for the good of all of us.

The Nisga'a want this final agreement. It's the product of over twenty years of long and difficult negotiation. The provincial government has been at the table for eight years. The agreement has been carefully crafted, and it's been moulded to accommodate the needs of all the three parties. It's a compromise in the best sense of the word, in the sense that Chief Justice Lamer spoke of when he talked about give and take, and when he reminded us that at the end of the day, we're all here to stay.

The Nisga'a Nation and British Columbia have ratified the Nisga'a Final Agreement. The time has come, it seems to me, for Canada to do the same.

I will end my remarks by posing two questions to the committee, two questions before you begin to ask questions of me. I ask you, if not, after twenty years, this treaty, what treaty? And if not now, after all this time, when?

Thank you for listening.

The Chair: Thank you, Minister Lovick.

I'm going to try to get one round of questioning in. If we don't get to the end, it will appear that the government will not get the time, but I think we'll go as fast as possible. I would encourage people to keep within their five minutes so that we can get to as many of the parties as we possibly can. I'd appreciate assistance from the audience as well.

Mr. Scott, go ahead.

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Mr. Mike Scott (Skeena, Ref.): Thank you, Madam Chair.

Thank you, Minister Lovick, for appearing here today.

So much of what you've said I take issue with, but I think I'll start with the issue of consultation.

You leave people here with the impression that the Province of British Columbia embarked on a consultation process that was extensive, but I would remind anybody here who was paying attention back in 1996-97, when that took place, that in fact the agreement in principle, which is the foundation of the Nisga'a agreement, was already negotiated and already released publicly.

I would remind everybody listening here today that those citizens who took the opportunity to appear before that standing committee were routinely belittled and denigrated. Their character was called into question. Their motives were called into question.

I would remind everybody here to note that not one word of the agreement changed as a result of that so-called consultation process, which is indeed a lot of what's wrong with this entire agreement. The process that led to it has been perverted all the way along.

You seemed to dismiss out of hand the testimony of the Gitanyow and the Gitxsan when they said their concerns must be addressed prior to ratification of this treaty. They warned this committee on Tuesday afternoon that if that were not to happen, there is a real potential for conflict. They alluded to the fact that it might possibly be violent conflict. They asked this committee, “Do you want Bosnia? Do you want Chechnya? Do you want Northern Ireland?” That's how important this issue is to them.

I would ask you, Mr. Minister, are you prepared to recommend to this committee that ratification go ahead and take place? With those kinds of concerns and those kinds of emotions and sentiments expressed, are you prepared to have that on your hands if this in fact is ratified and those results do occur?

The Chair: Go ahead, Minister.

Mr. Dale Lovick: My answer to Mr. Scott's last, and dare I say loaded, question is yes, I am prepared to see the ratification go ahead. I do not disagree with the premises on which his question is based—or I do disagree, I should say, with those premises. Let me offer a couple of points.

First of all, as Mr. Scott points out, the reason there wasn't in fact the type of consultation he would like there to have been in the early days is that there was a secrecy agreement in the early days of B.C. coming to the table. Effective 1991, when the new government was elected and came to the table and started things in earnest, the secrecy agreement was dispensed with.

If there was impolite and boorish behaviour on the part of the parliamentary committee that went around the province, I would remind Mr. Scott that it was an all-party committee.

I would also note that he is wrong when he says not one word changed. Indeed, the wildlife sections of the agreement in principle changed quite significantly thanks to input from the B.C. Wildlife Federation.

Regarding the Gitxsan, or Gitanyow, more properly, that has been a struggle. Nobody denies it. We drafted the legislation in consultation with our colleagues in Canada and Nisga'a very particularly to ensure that the Nisga'a Final Agreement would not be completed at the expense of the interests of another first nation. I quoted earlier the passage in the final agreement that is, it seems to me, as clear as it can possibly be. I would also like to offer, for members of the committee's edification, a list of the Nisga'a-Gitanyow meetings, starting in May of 1993 and going up to January of 1998. In 15 separate meetings we have tried to work out this conflict.

If Mr. Scott is familiar with the history, and I don't know if he is, of the Nisga'a-Gitanyow relationship, he will know that it is not a happy one, and hasn't been for a few hundred years. Every effort has been made. At some point, I think, we who are charged with the responsibility of resolving land claims and aboriginal rights and treaty issues in this province and indeed in Canada recognize that we have a responsibility to proceed, to protect the interests of the minority, to be sure, but not to allow that minority position to hold up what we think is, quite frankly, the prevailing interests, the expressed interests, of the huge majority of people in this instance.

That's why we have proceeded, and I make no apology for having done so.

[Translation]

The Chair: Thank you. Go ahead, please, Mr. Fournier.

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Mr. Ghislain Fournier (Manicouagan, BQ): I'd like to thank you personally, sir, for your presentation in which you outline your government's position. Your submission contains some figures and we now know your legal interpretation of the overlap issue.

Some of the witnesses who have appeared before the committee have a legal background. I have great respect for the legal profession, but I'm always very careful when I speak to lawyers. We would be wrong to think that members who don't have any legal training can't distinguish between what's good and what isn't.

Mr. Minister, these particular witnesses stated that it is often noted that certain provisions in the Nisga'a Final Agreement violate the Canadian Charter of Rights and Freedoms. Is this also your position, sir?

Mr. Dale Lovick: Thank you, Mr. Fournier.

[English]

I will speak English for obvious reasons today.

I would point out the issue you raised regarding those who say that perhaps the Nisga'a agreement, and more particularly the Constitution, is the concern. To a degree as well, the self-government provisions may not be entirely consonant with the Charter of Rights and Freedoms. That's the legal opinion that I have heard held in certain quarters. The overwhelming opinion that we have had from all of our legal counsel in the course of our long and elaborate discussions and negotiations is that this is not the case. We have indeed been given the assurances that there aren't problems there.

I suppose to answer the question, Monsieur Fournier, the other point is simply that the language of the treaty says that in the event of conflict, our laws indeed have paramountcy or priority and that everything rests, if you like, under the rubric of the Charter of Rights and Freedoms. That gives me and my government comfort that we aren't in difficulty in that area.

[Translation]

Mr. Ghislain Fournier: I too believe that this agreement will bring stability and social peace. Would you also agree that the Nisga'a Final Agreement will promote economic development in the region in question and throughout British Columbia as well?

[English]

Mr. Dale Lovick: Madam Chair, to the member's question about whether the Nisga'a Final Agreement will promote economic development in that region, the best answer I can give him beyond the macro-economic detail that I have already read into the record earlier would be to simply tell him what we hear from the people in those communities.

I have visited Terrace, Smithers, the Hazeltons, throughout the Nass Valley, and indeed all the way up to Prince Rupert. The consensus of opinion that I encountered there over and over again was that they—“they” being the people of the northwest—would rather that all of us southerners quit messing around with their treaty, because they think it is good for them. Indeed, that's what the mayor of Terrace said at one point, in a front-page story. Quite frankly, he was fed up with southerners attempting to tell them how things should be done.

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There is no question in my mind that the Nisga'a Final Agreement will represent a huge economic boon to that area, to that region of the province. Frankly, it's one that is long overdue.

The Chair: Madam Hardy, go ahead.

Ms. Louise Hardy (Yukon, NDP): I'd like to thank you for appearing as well.

This morning we heard from a witness, Mr. Smith, who gave the impression that Nisga'a law could in fact penalize or even imprison someone who was a non-Nisga'a person. He gave examples in all different areas, such as health, child care, education, alcohol, etc. Could you just talk about that a little bit more, about how B.C. law will work concurrently with Nisga'a law?

Mr. Dale Lovick: Thank you for your question, Ms. Hardy.

The issue of concurrent jurisdiction and paramountcy is a complicated one. At risk of being accused of evading the question—I assure you that I'm not—I would like to make a suggestion to you and your colleagues on the committee. If you'll allow me, I can extrapolate a little bit from the point I'm about to make.

The reality is that in terms of the treaty that you are debating, the exact same document has been canvassed at great length in our chamber. One is tempted to say there is nothing new under the sun. Indeed, everything I have heard said in opposition to this treaty I have heard many times before.

I gave about a ten-minute speech once on the very subject you raised in terms of how those two systems will operate, what concurrence means, what paramountcy means in our chamber. I would recommend to all members of the committee that they use what we did with our experts sitting in the chamber assisting ministers to answer questions, to assist you.

Our committee system in British Columbia works somewhat differently from the federal one. We have a committee of the whole in the legislature, and we bring in experts with us to answer all the questions from the opposition. Therefore, you will discover that some of the incredibly technically difficult questions have indeed been answered in great, great detail.

Suffice it to say to your particular question that we believe the arrangement that we have negotiated, that we have worked out with the Nisga'a and Canada in the final agreement, is one that will work very well indeed. We don't see any points of conflict. In fact, the basic argument that I would share with you, for those people who want to ask how we can possibly have one set of laws working here and another one working there, or how we can have one police force here and another one twenty miles away, is that the reality is that we have it all over the place in this country. Right now, I want you all to know that if you drive five miles out of the city of Victoria, I want to warn you that you'll be subject to the activities of another police force.

In short, I think the question suggesting that there is one little set of laws here that somehow is incompatible with or inconsistent with the rest of the country is ludicrous, frankly.

The Chair: Mr. Keddy, please.

Mr. Gerald Keddy (South Shore, PC): Thank you, Madam Chair. I'd also like to welcome the witnesses.

A couple of issues have been raised here, but I'd like to go back to further develop the idea of overlap. We certainly have heard from all the parties concerned on overlap, on the Gitanyow and the Gitxsan. In discussions with the Gitanyow—and I think this needs to be made very clear—I listened to the debate with both of those first nations, and there was no talk of going to war or a Bosnia or Chechnya. There was definitely some prompting from opposition members to try to get them to say that. Definitely the Gitanyow and the Gitxsan are not happy with the overlap, nor should they be, nor should we expect them to be happy with the overlap. But it is an issue that's dealt with in the Nisga'a Final Agreement.

I think it also needs to be said for people in the audience that paragraphs 33, 34, and 35 deal very clearly with the overlap, even to the point where they break it down so that where there is overlap, it's dealt with on a basis of jurisdiction. Where the jurisdiction is in conflict, then subparagraph 34(b) comes in and allows for a provision to go back to have a final settlement through arbitration or some other method, but it has to be settled.

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After all that is said, the Gitanyow themselves said they recognized paragraphs 33, 34, and 35 as allowing for dispute settlement. What they'd like to see is a continuation of that into legislation, but they don't think it's there at this time. I'd like your comment on that.

Mr. Dale Lovick: First of all, I thank you very kindly for the question and for clarifying that you haven't been greeted by first nations people who are telling us that Bosnia is just around the corner. I think it's important to make that very clear to anybody paying attention to these proceedings.

You're quite right, in the sections that you read, that we have attempted to anticipate all of those things. I think the best comfort I can give you to deal with your specific question is to say that we have been meeting with the Gitanyow. Indeed, I met with them and introduced them to what we call a first nations issues working group—a cabinet and caucus committee that we have—to talk about their concerns and to talk about the difficulties we've been having.

As I say, the conclusion to all of that is that I think we will be tabling a proposal very shortly with the Gitanyow. So the treaty negotiation, the discussion, is still going on. Notwithstanding the concerns they might have—and it's an important perspective to put this in—they recognize nevertheless that they too want a treaty, and they want to continue that process to try to achieve one.

And if I might just add a very brief addendum to that, I would point out that one of the difficulties we had in Nisga'a was that we started the negotiations before there was a protocol covering overlap. The B.C. Treaty Commission process that we have subsequently established has a position that says they don't get an agreement until they—i.e., the first nations—work out their disputes about overlap. Nisga'a, however, began long before that, and it was considered to be unfair to impose that restriction on them that late in the game. That's why we have the difficulty. But as you point out, I think our legislation does a pretty good job of addressing it.

The Chair: Mr. Iftody, you have three minutes' worth of questions from this side.

Mr. David Iftody (Provencher, Lib.): Certainly, unless I get pulled away from behind.

Thank you for your presentation, Mr. Minister.

I just want to follow on one of your themes that I found quite interesting. You mentioned the agreement of the people of the north who are to be, in this instance, primarily affected by this treaty. As you said, it's other folks down south sort of telling them what to do with their lives. We heard, for example, from the mayor of Terrace, representing the largest community, in testimony to this committee just a few days ago. He was joined by Joanne Monaghan, of the Regional District of Kitimat-Stikine, which covers a broad and sweeping area. I understand that she is the chairperson, and there is a pyramid of local politicians underneath in a group that could number twenty, thirty, or forty people, perhaps, spread out through this affected area.

In testifying to the committee, both of these individuals essentially were categorical—and I sought clarification on this—that they thought it was a good deal for their communities, that it would help them prosper. They said they had lived together—perhaps in reflecting the Supreme Court decision that said no one's going away here—and they thought it was a good thing for their people.

Let me say it this way: Local grassroots politicians in that northern region were categorical in their support, in saying that this would be a good thing, not a bad thing for the local people.

When the standing committee of the assembly of this province toured that area, was this what was said as well in those 31 meetings? I ask because, quite frankly, sir, I find that evidence given by these two politicians quite compelling. Perhaps you could comment on that.

Mr. Dale Lovick: Thank you for your question. I think my answer is going to surprise you.

I think the conclusion you reported from people like Jack Talstra and Joanne Monaghan is one that, quite frankly, wasn't there in the beginning. I think that has evolved. I base that statement on.... Let me give you an example—and I'm sure this individual will forgive me for using his name. I'm referring to the former mayor of Kitimat, a guy called George Thom.

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George Thom fought hard to get a voice on the advisory committee. He felt that at that point the regional district and local government had been excluded. He also came to the table, frankly, with some hostility and some suspicion. Two years later, after working through that incredibly difficult task of what this means and what its implications are, George became one of the most passionate, effective, articulate advocates of the treaty.

I would suggest that this phenomenon has been repeated time and time again. I could say the same about a number of other municipal leaders. The conclusion, then, is that today—it may not have been the case a few years ago—that is almost universal among those who understand and have been working in the development of the treaty.

The Chair: Thank you, Mr. Iftody.

Minister, we appreciate your time. I think we've only kept you a couple of minutes over our time. Thank you very much.

Mr. Dale Lovick: Thank you.

The Chair: Would Miles Richardson please come forward?

This will be another round of single questioning. We have the room until the end of our meeting and no longer, because it is required shortly after we're supposed to be leaving here.

I welcome Mr. Miles Richardson, the chief commissioner for the British Columbia Treaty Commission. We're grateful for your attendance today. Please commence when you're ready.

Mr. Miles Richardson (Chief Commissioner, British Columbia Treaty Commission): Thank you, Chair. I am Miles Richardson, and I'm the chief commissioner of the British Columbia Treaty Commission. With me today is commissioner Peter Lusztig, who is one of the five commissioners on the treaty commission.

I want to thank the Standing Committee on Aboriginal Affairs and Northern Development for the opportunity to appear before you today to discuss the important issues in front of us.

One of the great opportunities we have on the treaty commission is to move around British Columbia, to talk with a lot of different people and get a lot of different perspectives. One of the most memorable discussions I had was with a group of grade nine students in Point Grey, in Vancouver. I'd been invited by their class to go in to speak. They'd had a series of discussions on treaty-making in British Columbia, and they'd asked me to address them on it and answer their questions.

Inevitably, as happens in such discussions, we started talking about equality. It came up in light of a lot of issues, but the students boiled down the discussion to equality. We went round and round, and were talking about our various perspectives on that. Toward the end of it, one of the young fellows who had been sitting in the back of the class and hadn't said anything stood up and puffed himself up because he had something important to say. He said that to him, equality doesn't mean we're all the same, because we're not; to him, equality means that each of our rights are clear and that we respect each other. In some of the tougher times in facilitating treaty negotiations in British Columbia, I pray that such wisdom would prevail.

Treaty negotiations are about rights, they're not about race and those various other things that different commentators bring to the table and inject into the discussion.

• 1410

After 150-odd years in British Columbia, six years ago we decided between first nations, the Government of Canada, and the Government of British Columbia on a process and a procedure to address one of the most fundamental, lingering questions that has existed among us, and that's the land question in British Columbia, the dispute over title, as the courts characterize it. We've agreed on a process to address the competition between crown title and aboriginal title, the legal expression for the ancient hereditary title of first nations.

Although the Nisga'a negotiations, which have been ongoing for much more than six years, for twenty-odd years, preceded this process, the implication of good faith in those negotiations and of following through on the commitments in that treaty made at that table in pursuing that treaty will have ramifications throughout the process of negotiations in the rest of British Columbia.

We're here to say something very simple. In the interest of keeping the negotiation option viable, in the interest of giving it strength and the leadership that's expected from government authorities, as has been agreed previously, the Nisga'a treaty must be ratified.

The B.C. Treaty Commission, as I stated, was established in 1993 to facilitate treaty negotiations in British Columbia. Though not involved in the Nisga'a negotiations, the treaty commission has watched carefully those negotiations over the past six years. The Nisga'a negotiations were well under way when the treaty commission was established, and they are therefore not part of the treaty process. However, when the Province of British Columbia joined the Nisga'a negotiations in 1990 the modern era of treaty negotiations in this province had begun.

At about that time, the B.C. First Nations Congress, on behalf of participating first nations and the governments of Canada and British Columbia, struck the British Columbia claims task force to recommend an approach to the negotiation of modern-day treaties in B.C. After 150-odd years they decided to negotiate this issue.

The task force was given six months to come up with an approach on how to address this. That task force came up with 19 recommendations contained in its report. That report and its recommendations are the blueprint for the B.C. treaty process, which the treaty commission facilitates.

In accepting these 19 recommendations the parties made fundamental commitments to each other, to the people of British Columbia, and to the people of Canada. A primary responsibility of the treaty commission is ensuring that the parties honour those commitments.

The B.C. claims task force report provides for your committee an insight into those commitments, particularly the anticipated scope of negotiations. Some people have argued the public didn't know what we were getting into in these negotiations and that elements of the Nisga'a Final Agreement were a surprise. Nothing could be further from the truth.

The task force report was clear about the scope of negotiations in 1991. Looking at the Nisga'a Final Agreement, you may conclude the task force presented an accurate picture of what people could expect in treaty negotiations and eventually in agreements.

The public did know what to expect, if not in 1991, when there was considerable public interest in aboriginal issues following a period of heightened social unrest, then in 1993, when the B.C. treaty process was launched. Since that time treaty negotiations have been wide open, the most open and accessible process of its kind the treaty commission is aware of.

• 1415

The committee should really learn about and listen to this point while in British Columbia. Every treaty tabled in this province has an openness protocol in which the parties agree that their discussion and their deliberations are generally open to the public. Of course, there are times when such sensitive issues are being negotiated that there will have to be some private discussion. In terms of these openness protocols, those are the exception rather than the rule.

These negotiations, committee members, are very open. We would encourage British Columbians and Canadians to look forward from here, to take the opportunity to be informed and to be involved in treaty negotiations.

Nothwithstanding the formal agreements to openness, one of our disappointments is that treaty negotiation sessions—and there are 42 tables around this province in every corner of this province—are very poorly attended. In our view, the openness is unprecedented.

The Nisga'a have led the way in treaty negotiations, but the Nisga'a Final Agreement is not a template for treaties in British Columbia. Many first nations say it falls short of their expectations. That is for individual first nations to determine and not for us to judge. The Nisga'a Final Agreement is for the Nisga'a people and for the people of British Columbia and for the people of Canada. It honours the commitments of the parties to negotiate voluntarily a treaty with full and informed consent. By its nature the treaty is an arrangement reached through political negotiations, not through strict legal interpretations. It also addresses Canada and B.C.'s legal obligations to the Nisga'a people in a mutually acceptable way.

Referring again to the task force report, it says, and I quote:

Treaty negotiations in British Columbia provide an opportunity to recognize First Nation governments on their traditional territories. It is important that the treaties, which will receive constitutional protection, be explicit on matters of jurisdiction.

An element of the historical basis of first nation entitlement to participate in treaty negotiations lies in the fact that first nations were once distinct and self-sufficient nations, each having their own language, their own economy, their own system of law and government and their own territory. This entitlement does not simply arise because first nations owned land, but because they also governed it.

While it is true that the courts have not yet been asked to determine if self-government is an aboriginal right, their pronouncements on the nature of aboriginal title give some indication of their thinking. In describing aboriginal title as belonging to the community that has ownership of the land, the Supreme Court appears to imply that aboriginal title requires some form of collective jurisdictional arrangement for its very exercise and regulation. It logically follows that some form of self-government is a necessary component of aboriginal rights and title.

British Columbia's history is one of denial of aboriginal title and rights. The Supreme Court of Canada has clearly said this must change. Aboriginal title and rights are no longer a subject for debate or inquiry. Our highest court pushed the issue of what we refer to as the land question—the conflict between crown title and aboriginal title—into the political realm by urging negotiations. That preference for political negotiations over litigation has been underscored repeatedly in recent judgments of the court. The Nisga'a self-government provisions were achieved through the give and take of political negotiations.

Some people have argued that if we must have treaties they be settled by a one-time cash payment to each aboriginal person. The Delgamuukw decision of the Supreme Court makes it clear that this is not an option. The reason is aboriginal title.

Aboriginal title is found in many parts of the world and it is older than property systems based on common law or civil law. Aboriginal title is based on the fundamental principle that the people who occupy and use a land have title to it.

• 1420

One of the characteristics of aboriginal title is that it's held by groups and not by individuals. So when the Supreme Court of Canada confirmed that aboriginal title exists in B.C., it was clear that governments would have to respond to the needs of first nations, the holders of that title, and not to individual members.

An overwhelming majority of British Columbians agree that it is necessary to negotiate treaties with first nations to resolve the issues of land ownership and jurisdiction in this province. Most people agree that for too long these issues have been ignored or denied. For too long the people of this province have borne the costs of economic uncertainty.

There is a treaty process in place to deal with the issues. It is a process that has informed the Nisga'a negotiations, as the Nisga'a negotiations have informed the B.C. treaty process.

Let's remember that treaty negotiations are about change. Treaties mean change in fundamental aspects of our lives—who owns the land, who exercises jurisdiction over the land and who manages the land.

Treaties also mean change in the allocation of resources and revenues from resources. As a result of special interest politics, there's been an attempt to ensure there are no changes in these areas, and that has been destructive to treaty-making. If the process unfolds with millions of dollars being spent and if it is taking too long to reach agreements, it will erode relationships and seriously threaten the willingness of first nations to negotiate.

The Government of Canada must remain true to the commitments it has made in entering treaty negotiations with first nations in British Columbia and it must honour the agreements it has entered into in good faith. At this tense time in treaty-making in B.C. first nations need to know that Canada and this province remain committed to treaty-making. The Nisga'a Final Agreement is an expression of that commitment.

We must stay the course in this journey that began when the Government of British Columbia joined with the Government of Canada in negotiations with the Nisga'a in 1990. It's a journey that for first nations began over 150 years ago.

For more than 150 years first nations in B.C. have consistently sought recognition of their rights and title through petition, protest, litigation, and negotiation. The days of denial are behind us. Canadians have chosen the route of political negotiations, and we're here to say that's the preferred route, the best route to achieve a mutually respectful reconciliation.

There are also compelling reasons for concluding treaties now, and there have always been strong historical and economic reasons for concluding treaties. It is time to get on with that job. There's an agreement among the Nisga'a and the federal and provincial governments on how to do that. It was an agreement that was difficult to achieve, as future treaties will be difficult to achieve if they are to meet the needs and interests of each of the parties.

The treaty commission asks the committee to recommend that the Nisga'a treaty be ratified at the earliest opportunity so that treaty-making in British Columbia will not be delayed or derailed. A failure to ratify the Nisga'a treaty will seriously harm the honour of the crown and it would make it difficult, if not impossible, for Canada to continue with treaty negotiations in British Columbia. The failure to ratify the Nisga'a treaty will make other options such as litigation and direct action by first nations much more attractive.

Thank you for allowing us the time to express the views of the treaty commission. My four fellow commissioners join me in wishing you well in your deliberations. Thank you.

The Chair: Thank you, Mr. Richardson.

We'll just barely have time to get one round in.

Please go ahead, Mr. Gouk, for the Reform Party.

Mr. Jim Gouk (Kootenay—Boundary—Okanagan, Ref.): Thank you, Madam Chair.

I've heard today that the current process through your organization says no settlement until the overlap questions have been dealt with. Because Nisga'a was already under way that wasn't imposed upon them.

• 1425

We've also seen testimony and information, of course, which is in the public domain in any case, that the first map that was put in in a treaty claim under the Calder decision did not include Gitanyow and Gitxsan land. The Gitanyow, in talks with us on Tuesday, have pointed out that since the agreement in principle, they have tried to have meetings with the Nisga'a in order to resolve the overlap, and the Nisga'a have not come to those meetings. Frankly, why should they, they said, when they've got both levels of government already on their side?

Negotiations now must take place with the Gitanyow as well as many others. And they say, “What do we negotiate for, if the government has given away our land? It's little comfort if you take my house and tell me it's okay because you'll let us hire lawyers and experts and let us go to court to try to get it back.” I don't think any non-native person would accept that, and I don't see why any native should either.

And you say we must move ahead, because if we don't, to quote you, “A failure to ratify the Nisga'a treaty will make other options such as litigation and direct action by first nations more attractive”. The Gitanyow are saying all they have is to go to court or use other action. This is an act of violation of trespass. It is a serious offence under aboriginal law, and they will defend their land.

So if you're so concerned that we stay out of court, why are you recommending we go ahead with this before this is settled?

The Chair: Mr. Richardson, go ahead.

Mr. Miles Richardson: It's encouraging to hear the member with such a resounding defence of aboriginal interests. On the matter of the Nisga'a treaty and its relationship to the Gitanyow negotiations, of course, as I stated, the Nisga'a treaty preceded the B.C. treaty process.

As the B.C. treaty process has unfolded, the treaty commission has recommended very clearly to the parties on the matter of overlapping territories that Canada and British Columbia not conclude stage four, an agreement in principle, until best efforts have been made to resolve the overlaps. That's not done in the Nisga'a treaty. That was brought to the attention of the parties when they concluded the AIP, the agreement in principle.

It's my understanding that changes were made in the agreement in principle to accommodate any future recognition of other first nations rights that may have any relationship to what's in the Nisga'a treaty. So clearly, some options have been forgone, but the option of negotiating a solution to this overlap still exists. And we would, I hope, join all of you in urging the Nisga'a, the Gitanyow, and the Gitxsan to sit down respectfully and in good faith and resolve this issue. The provisions are there to do so.

Mr. Jim Gouk: What would be your position on taking the disputed land out of the treaty, subject to a court decision or adjudication, and going ahead with the rest? I'm not saying that's the only concern I have, but specifically on this issue, what would be your position on it?

Mr. Miles Richardson: The treaty commission, as an impartial keeper of the process, doesn't take a position on such matters. When a commitment to negotiation has been made, the position we take is that those should be lived up to and adhered to in good faith. But on a substantive position like that, it would be up to the parties to take that position.

Our view is that we urge the parties to negotiate a resolution. The means to do so are there. What it takes now is the will to do so.

I see it as being as urgent and as important as you see it. I think it's an important point, and they must get on with it.

Mr. Jim Gouk: You're going to be involved in negotiations with the Gitanyow, and they are asking what they're supposed to negotiate for if you've given away their land. How do you negotiate with someone who says the very land they would claim you have ceded to the Nisga'a? And this was not part of their original claim. The first map did not include Gitanyow or Gitxsan land. It was only because it was extended that we talk in terms of them getting only 8% of their traditional lands. They're getting 25% of their original claim, and it's only because they expanded the boundaries into claimed Gitxsan and Gitanyow land that this figure got reduced to 8%.

The Chair: Please give a short answer, Mr. Richardson, because we're out of time on this round.

• 1430

Mr. Miles Richardson: It's correct that a dispute does exist, and I'd just repeat that the means to resolve it exist. It's a serious dispute. I'm not making light of it. It's a very serious dispute. The means to resolve it exist.

We would urge each of the parties, the first nations parties, with the support of the governments of Canada and British Columbia, to move forthwith to resolve this through mutually respectful negotiations.

The Chair: Mr. Fournier.

[Translation]

Mr. Ghislain Fournier: In my opinion, the agreement is very sound. To my knowledge, no one has managed to disprove the statement whereby even the worst agreement is worth more than the best court proceedings or rulings. Imagine having the majority of people say that the agreement is a good one.

That concludes my introductory remarks. Last Tuesday, the committee was apprised of the issue of overlapping territory involving the Nisga'a's neighbours who consider the lands included in the Nisga'a treaty to the part of their ancestral lands. We learned that you had agreed to mediation in the past and that in your estimation, the Nisga'a were acting in good faith in their relations with their neighbours. We also learned that an offer would be made shortly to the Gitanyow nation. Is it in fact true that you hope to take part in mediation efforts?

[English]

Mr. Miles Richardson: The treaty commission, as we became aware of this dispute between the first nations, has sincerely offered to be involved in facilitating or mediating at the call and the agreement of the parties involved—the Nisga'a and the Gitanyow. We remain willing to do so. But certainly we can't, nor would we, impose ourselves. If they ask us to be there to carry out that function, we will be.

Also, it's really important that in your comments you stated that in my remarks I had commented on the good faith or commitment of either of the parties in this dispute. That's not for us to do. That's up to the first nations to work out. We're not judging either of them, either the Gitanyow or the Nisga'a. All we're doing is urging them to resolve this through negotiations, and we're prepared to help with that.

In saying that, I'm not diminishing the complexity of it. But we're there to help if they want us to. They've chosen other mediators, and that's fair.

[Translation]

Mr. Ghislain Fournier: Apart from this upcoming offer, do you foresee a new attempt at mediation between the aboriginal peoples in the Nass Valley? If you do, what mechanism could you employ to facilitate the negotiation process?

[English]

Mr. Miles Richardson: I'm not clear on the question. Through what mechanism could we help out in the negotiation process among the disputing nations in the Nass Valley? What we have offered to do is to come in as an impartial, independent facilitator-mediator to help the parties to focus on the issues so that they're talking on the same page and engaging in negotiation.

Now, the specific means we've used to do that I can't lay out today. But that's one of the things we do, and it's a creative process. We've used the resources at our disposal to get them to sit down and engage in the negotiations between themselves. Clearly, this must be resolved between themselves.

• 1435

We call on the governments of Canada and British Columbia to support and assist in that endeavour, but we would play the role of mediator if they asked us. Right now, it's hypothetical; they haven't asked us.

[Translation]

The Chair: Have you anything further to add, sir?

[English]

Mr. Keddy, please.

Mr. Gerald Keddy: Thank you, Madam Chair.

I'd like to thank our presenters. I'm sure everyone on the committee has a number of questions. I'll try to keep mine to the point, but we're all guilty of preamble on this committee.

When we're talking about overlap, and that's the discussion, and certainly it's a discussion of concern to all committee members, there's a process, which we talked about earlier, very clearly stated in the NFA to deal with overlap. We've talked to the Gitanyow and the Gitxsan about that, and they are aware of that as well. They would like to see that process clearly delineated in the legislation as well, and would be more comfortable with that.

The other comment I want to make is on your comment about a template. We've all been extremely careful to say this is not a template for any other treaty. However, I can say that there are a number of issues about this treaty that I think all members of Parliament, and I suspect even some of our members who are not supporting this treaty, like. I want to list a few of them, because those are parameters that I think most Canadians and most first nations embrace.

We're going to disagree on some of them, and that's going to take negotiation and a lot of work. But certainly in this treaty the Constitution of Canada applies, and most parties like that and would like to see that in all treaties. The fact that the Charter of Rights and Freedoms applies is something that's important to the treaty process.

When you get to the question of fee simple land ownership, that may be an issue that will work in some treaties and may not work in others; that's not for me to say. However, what I like about the fact of fee simple land ownership is that it gives first nations that right to mortgage property, to put it up as collateral, to go to the bank, and still retain control and jurisdiction of that property even if that property falls out of first nations' hands, because it's still within the Nisga'a settlement and Nisga'a laws still prevail over it. On taxation, it's a different matter.

If possible, I'd like your comments on the fact that some of those things could possibly be transferred to other areas and other treaties.

Mr. Miles Richardson: The Nisga'a treaty is not a template; it's just recognition of the fundamental commitment and reality that each first nation will be at liberty to negotiate, of course, with Canada and British Columbia, who are the same governments on the other side of the table from them, their own treaty. It is true that looking at issues in the full light of day, there are some issues to which there will be a common approach, but making that a precondition to negotiations would be wrong. In the course of negotiations and through agreement, at the end of the negotiating day that may happen, and I venture to say it will happen, but that's not a precondition to the negotiations.

On the matter of the legislative implementation of dispute resolution aspects of the AIP, the agreement in principle, I would just urge Parliament to be supportive in whatever way you can of the resolution among the first nations involved in this serious dispute. I think it's important to be supportive of them, because they're the only ones who can resolve it themselves.

The Chair: You can have time for a very short question, with no preamble, unless you choose.

Mr. Gerald Keddy: I don't know if I can ask a question without a preamble.

The Chair: I was joking, Mr. Keddy; you can have as big a preamble as you wish.

• 1440

Mr. Gerald Keddy: The other issue around which there has been a lot of controversy is the fish allocation, the percentage of the TAC on the Nass River that will be allocated to the Nisga'a. When I look at the fish allocation, the total allocation on Canadian stocks is 26%, and 16% of high-seas stocks, understanding that a lot of that will be caught on the high seas by interception fisheries, mostly by Alaskans.

The reason I'm bringing that up is because of discussion for other treaties. And of course the opposition will say that with 26% of the stocks on the Nass River, if you apply that to the 50 bands that are currently under negotiation—or I believe you said there are 42—there won't be any salmon allocation left for a non-native commercial fishery. However, if you took that ratio and applied it straight across the board, it would be pretty obvious that you'd have 64% of the total TAC left as allocation for a commercial fishery, whether that happened to be non-native, native, or whatever. It's the commercial fishery.

I realize that salmon are a serious part for many of the bands on treaty negotiation, but do you see at the end of the process—and I'm sure you've worked some numbers out and looked at this—that there is still, as we see, room for a commercial fishery, or if you wish, a non-native commercial fishery?

Mr. Miles Richardson: That's an issue that parties at the table would address, and it's not for us to say as the treaty commission. But surely that would seem to be an important part of a reconciliation in terms of fisheries issues, whether it be the allocation of the fisheries or the management authority. It would seem that it would be a shared solution, one of sharing among all the participants in that fishery.

The Chair: Mr. O'Reilly, please, for five minutes. This is the final round for this witness.

Mr. John O'Reilly (Haliburton—Victoria—Brock, Lib.): Thank you very much, Madam Chair.

Thank you for attending. You've given us some insight into the process.

In your document, you state that from 1991 to 1993 there was very little openness in the negotiation process, and you say that since that time the treaty negotiations have been wide open. We've only heard about the closed part of it. From the opponents, we've heard “secret,” “rammed through,” “behind closed doors,” “no consultation.” Many of those things are brought into our light as they are prompted by the Reform Party, of course.

I wonder if you could elaborate for me on the process. You're saying the process is wide open, except, of course, for certain things that are in-house in any municipal government or any federal government or any provincial government. But we've heard all along that there's no consultation process in the treaty negotiations. You've given us a little bit different view of that, and I want to give you the opportunity to elaborate on that in more detail.

Mr. Miles Richardson: If what you heard me say in the paper was that between 1991 and 1993 it was closed, that isn't what I had intended to say, and I think the parties at the Nisga'a table could speak quite adequately to the openness provisions they've made.

But since the B.C. treaty process began, some of the first protocols negotiated in this process were openness protocols. Included in there were the terms of public scrutiny, public access to the negotiating table, and how communications would occur between the actual negotiating table and their various constituents, the constituents of the Government of Canada, of British Columbia, and of each first nation.

Typically, looking at Canada and British Columbia, in terms of the protocol, they generally work together on this. They've set up that as well as reaching agreement with the first nation, the actual treaty negotiations are open to the public and anyone can have access to them. As a general rule, that is one of the provisions at most of the tables. So the actual negotiations are open to full scrutiny.

• 1445

As well, they've set up consultation mechanisms. At the regional level they have what they call regional committees, which have all of the interest groups that are organized, that have interests in the issues that are being negotiated, represented. Canada and British Columbia work together on formally consulting with them on those issues.

Also, they have local government advisory committees, which is a routine feature of these openness protocols, so that the local governments—the mayors, the regional districts, and all those in the region—have formal access to the negotiations. I know in the Nisga'a negotiations that was very detailed access. I know because my uncle is the mayor of Port Edward—he wouldn't appreciate me saying that. The local government authorities have had very full access in this case—this is the only one that has gone to a final agreement, to the negotiating exchange—to the information.

There have been public forums. Province-wide also, there's what they call the Treaty Negotiation Advisory Committee, where the major interest groups that are organized on a province-wide basis have regular access to the federal and provincial negotiators, as well as the ministers, who give them their direction. That includes forest industry representatives, fishing industry representatives, guides' and outfitters' representatives, province-wide real estate organizations, environmental groups, and it goes on and on. There's a full consultation province-wide, from the grassroots right to that level.

When I say it's unprecedented openness in fundamental negotiations such as this, I challenge anyone to show me a process that is more open than this one, anywhere in this world. I challenge them to do so.

The Chair: Thank you very much. That is the end of the questioning for this witness. I'd like to thank you both for coming today and sharing with us your knowledge of the matters of treaties in British Columbia.

I would invite our two next witnesses to join us. We have Gordon Campbell, the leader of the Liberal Party of British Columbia, and from the Fraser Institute senior fellow Gordon Gibson.

• 1450

Welcome, Mr. Campbell and Mr. Gibson. I'm very pleased you were both able to attend this afternoon. Before you begin, would you like to introduce your colleagues for us?

Mr. Gordon Campbell (Leader, Liberal Party of British Columbia): Thank you very much. My name is Gordon Campbell. I am here with my Attorney General critic, Geoffrey Plant, who is an MLA for Richmond—Steveston, and the aboriginal critic for us, Michael de Jong, who is the MLA for Matsqui.

The Chair: Mr. Gibson, we are glad you could join us this afternoon. We are going to have each of you do a brief presentation of about ten minutes and then we'll go to our round. We'll probably just get one round of questions in. We do them in five-minutes rounds, as I know you both saw in the audience there.

Who would care to go first? Mr. Gibson.

Mr. Gordon Gibson (Senior Fellow, Fraser Institute): Thank you, Madam Chair.

I should start out by saying that even though we're on the same panel, Mr. Campbell should not accept any responsibility for what I say. This is an independent statement.

The Chair: Thank you.

Mr. Gordon Gibson: This Nisga'a treaty is an enormous topic. I am going to confine myself to the overview of the great principles. I have written on the fine print; others at the Fraser Institute have written on the fine print. I will leave with the clerk of the committee four of our publications for consultation, if anyone is interested.

Another prefatory remark—is this treaty a template? It is not a template. It is a floor. There is no way that any aboriginal politician in this province can agree to anything less than the Nisga'a treaty in any area without a great deal of difficulty. So this treaty has importance far beyond its own terms.

My first comments will deal with the Nisga'a treaty's contribution to reconciliation with the past and its provision for future relationships.

Reconciling with the past is no longer a philosophical question; it is a matter of law and politics and property and other rights. This is governed by the Delgamuukw decision. It is emotional. It sets a pattern that will result in massive transfers of wealth within British Columbia, much of it paid by Canada.

Before the Nisga'a treaty, $10 billion was the accepted cost of settling the land question in British Columbia. The Nisga'a treaty appears to indicate some $15 billion. My guess is as Delgamuukw kicks in fully in future negotiations, which was not in the Nisga'a, $30 billion plus will be the appropriate number.

This is certain to lead to the pressure for reopening earlier treaties across the country, and certain to influence settlement expectations in the Atlantic and Quebec, where there are no existing land claims treaties.

But far more important than any of that is the matter of future relationships. This is discretionary and it is not guided by the courts. I want to emphasize that, and I'll come back to that.

This treaty repeats the errors of the past. This treaty is the capstone of 132 years of failed federal policy. It would be a terrible mistake. The chief errors are these: the treating of Indians as different from other people; establishing governments based on closed membership societies; the constitutionalizing of a previously unknown third order; the consequent undermining of Canadian citizenship values by minimizing the relationships that some citizens have with their governments and each other; and maximizing required relations with Indian governments.

This is being done by constitutionalizing a pervasive power structure that in other experience has given Indian governments the means to control the people, rather than the reverse, and establishing an economic structure based on collective ownership and management of most property.

The root of the difficulty is the BNA Act of 1867. In 1867 we had a sexist and racist world. Women, Chinese, Jews, Indians were all thought to be inferior. Only Indians had the misfortune of being placed in the Constitution. The state of everyone else is fine in 1999. The state of the Indians is not good. It may have been understandable then, but it is unpardonable now to single out Indians as being different from other Canadians.

The Nisga'a treaty is the latest shiny milestone on a wrong-headed dead-end road to misery.

The evidence of history is clear. We have attempted to treat Indians differently, but not all of them agreed. In the last census there were 1.1 million Canadians of aboriginal heritage. Roughly one-third no longer self-identify, and the royal commission found that those folks are just fine. Another third do not live on reserve and they are significantly better off in terms of jobs, education, health, family violence—all of those measures. Then there's the one-third who live on the reserve.

• 1455

How can what amounts to a super-reserve policy, which is what the Nisga'a treaty is, be justified in the light of this experience? And this is actual experience; this isn't guessing. The root question is this: Are Indians ordinary human beings like the rest of us, or are they fundamentally different? We all differ in our culture, our heritage, our physical and mental endowments, our material lives, but do we therefore assign different classes of citizenship, different political rights?

We've developed a tolerant and civil society in Canada. Our governance and our rights structure successfully span huge differences among us. The differences between men and women, young and old, Scots and Chinese, capitalists and socialists, Catholic and atheist, gay and straight, secluded hermit and communal Hutterite—all of those differences are spanned by our existing governance forms.

So as to the Nisga'a treaty, given the success of our existing model for non-Indians, why do we need to set up and constitutionalize a separate Indian government based on a closed membership society defined by ethnicity and heredity? If you want to pass the Nisga'a treaty, you have to be able to answer that question and then answer the second question: what word would Martin Luther King and Nelson Mandela have used for that arrangement?

There are three theoretical justifications given for separate Indian governments. One, they're so different from the rest of us they have to have a separate government. I reject that as patent nonsense. Two, the form of governance in effect at the time of European contact should somehow be re-established for some reason. But governance has changed all around the world immeasurably over the last 200 years, and surely the only sensible measure today is utility, not emotion. Or a third order is required as an indispensable condition for the maintenance of aboriginal culture.

I have two comments. The aforesaid Hutterites and Jews around the world under terrible persecution have maintained their cultures. Are Indian cultures less robust? But far more fundamentally, is the preservation of any culture at the expense of other citizens—for such things are not cheap in dollars or in this case violence to other Canadian values such as equality and non-discrimination on the basis of race—a proper object of government? I hold that the preservation of any culture is the responsibility of its adherents.

The purpose and merit of collectivities is a major lens for examining the treaty. There are two of these issues, collectivities in freedom and collectivities in economics. The issue of collectivities in freedom can be recast as the issue of small governments and large powers. The Nisga'a government will control a budget of $30 million, about $15,000 per capita, which is to say almost all the cashflow in the community. The Nisga'a government will control almost all of the financial and tangible assets of the Nisga'a people. The day-to-day lives of citizens in such matters as access to housing, education, welfare, health, special funding for off-lands educations and so on—all of this will be controlled by the Nisga'a government or the Nisga'a crown corporation.

Citizens will have very powerful incentives to get along with a government that powerful. Is this a municipal government? Not at all.

Lord Acton said that power corrupts and absolute power corrupts absolutely. That is true. It has nothing to do with Nisga'a or Indians or North Americans. It is a fact of human nature. And that's why the story of modern government has been the development of functioning checks and balances. The Nisga'a treaty incorporates fine words in this area, but lacks enforcement mechanisms.

The issue of collectivities in economics is very simple. The Nisga'a treaty puts essentially all asset management under the collective run by the Nisga'a government. And if there's a single universally agreed economic lesson of the 20th century, this system is a failure in terms of both economics and freedom. The essence of husbandry and productivity is private property. The basic condition for liberty is private property. The Nisga'a treaty does not forbid private property, but invests essentially all property in government.

The Nisga'a settlement is to be delivered as common property, but could be settled as individual property. And with all due respect to Mr. Richardson, no court prevents this. The terms of the treaty can say what they like and the court takes its guidance after that. And the failure to provide for individual settlement or for a choice of each Nisga'a as to whether they want to take their settlement and get on with their lives or whether they want to be part of an ongoing collectivity...that choice was never given to the Nisga'a people. And notwithstanding that, only 45% of the eligible adults affirmed the treaty. Many people simply did not vote.

As a final point of principle, I ask you to consider the morality of treating one Canadian differently in law from another. Imagine a newborn Canadian baby who is like the rest of us: the parents socialize and nurture the child, they inculcate value, the schools educate them, the state backstops the rights of the child, and equality of opportunity is the goal. Now imagine the same day a newborn Indian baby is born. That kid is subject to a different legal regime, to a state government that has far more influence over their lives and to unusual and arguably perverse economic incentives.

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The question I would like you to consider there is what moral right do we have to impose that? In our system, the parents can impose any set of values they want. What right do we have?

Finally, as to the role of this committee, the common view of the media seems to be this is a done deal, and nothing can change. That is the argument of the cynic or the intellectual dropout, I say. It is not correct. Governments have acted here with no public mandate on the most fundamental central government issue to impact British Columbia in my 62-year lifetime.

One of the most famous conversations in Canadian political history took place in July 1984 between Prime Minister John Turner, as he then was, and Mr. Brian Mulroney. Mr. Mulroney took Mr. Turner to task for carrying out a series of shameful patronage appointments pressed on him by Prime Minister Trudeau. Mr. Turner dismissed this by saying “I had no option.” Mr. Mulroney gave the correct answer; he said “You had an option, sir; you could have said no.” Mr. Turner entered the election with strong polls, but that debate was the end of him and he was washed away by history.

You have an option, members of this committee. You can say no. Say yes to an honourable settlement of the past, say yes to future assistance and equality of opportunity, say yes to genuine municipal-style government and a full range of checks and balances, but say no to a separate government structure for Indians and a widening of the legal differences between Canadians.

If you choose the wrong path it won't hurt me much and it won't hurt you, except maybe in the next election. It will just hurt those newborn Indian Canadians with “different” stamped on their foreheads by your continuing agreement.

The Chair: Mr. Campbell, whenever you're ready, go ahead please.

Mr. Gordon Campbell: Thank you.

There are many things we could discuss in discussing the Nisga'a treaty, but I intend to restrict my presentation to three key points, for your consideration. First I want to talk a bit about the process that has brought us to this hearing. Second, I want to focus on the most problematic aspect of the Nisga'a treaty, the proposed model of self-government. And third, I want to stress, in the strongest possible terms, how important it is to all British Columbians that we negotiate fair, workable treaties that will provide certainty, finality, and equality.

The Nisga'a treaty fails to meet those fundamental criteria. Indeed, every member of my caucus made the last point during the debate on the principles of this treaty in the B.C. legislature. I've brought copies of my colleagues' presentations with me, which I will table as their official submissions to the committee, since they've not been afforded the opportunity to meet with you in person.

A great many British Columbians would also have liked to have had the chance to speak to you all to tell you why they do or they do not support this landmark treaty. Sadly, one has to question the point of having these hearings at all, because it seems clear that nothing I say or anyone else says will have any bearing whatsoever on the treaty before Parliament.

Our legislative and parliamentary institutions are failing British Columbians and Canadians. We have been told the die is cast. One member of this committee has apparently said the treaty is a done deal that won't be changed, regardless of these hearings. That same individual has also said:

We're only in B.C. because of a tactic of the Reform Party to hijack the committee. This little song and dance is costing taxpayers $500,000.

What arrogance. What contempt for British Columbians. What a damning indictment of the federal government's utter disregard for parliamentary process.

If you want to send a message to British Columbians that Ottawa doesn't care about this province, that's the way to do it. If you're not here to fairly consider whether this treaty can, should, or must be improved, what are you doing here? It seems clear that the government has shut its mind, just like the B.C. government's mind was shut when it closed off debate in our legislature. What a sorry and pathetic excuse for democracy that is.

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Regardless of how we feel about this treaty, we all deserve a say. In the long run, that's the only way we are going to make treaties work. Unless treaties represent a common vision for reconciliation that reflects Canadian values, they're destined to fail.

If we truly want to build a new community, we must communicate. We must be willing to put our ideas on the table and our trust in the people. You can't impose treaties and expect them to work. Neither government has a mandate from the people of the province to do what this treaty purports to do.

British Columbians have been shut out of this process at every turn. It started with the confidentiality clause that kept the details of Nisga'a negotiations hidden from the public. From there, things just got worse. People were promised that all the recommendations of the provincial Select Standing Committee on Aboriginal Affairs would be fairly considered by the government. That promise was broken. I urge you to consider the recommendations that were made, which I am tabling today.

People were promised that the 31 members of the treaty negotiation advisory committee would have a chance to consider each and every chapter of the treaty before it was initialled. That promise was broken. They were promised that overlapping claims would be resolved before finalizing treaties. That promise was broken, as you've heard from the Gitanyow. People were promised that their elected representatives would have as much time as necessary to ask questions about this treaty. That promise to the people of British Columbia has been broken too.

The B.C. government slammed the door shut on debate before even half of the treaty had been scrutinized, and now the federal government has continued that abusive process. Closure was used to prevent B.C.'s MPs from even speaking on the principles of this treaty. That means that British Columbians were denied even the most rudimentary level of representation on a treaty that will profoundly affect their rights, their province, and their future.

For me that raises a pretty straightforward question: why are the governments so afraid of the debate? It seems there can only be two possible reasons: one, either they don't know the answers to the questions that are being asked, or two, they know the answers and they don't want people to know. Either way, it's not acceptable.

I have written to the government several times and have written several papers to highlight our concerns about the treaty, all to no avail. I'm going to table those with the committee as well.

Even today, the public has been shut out of these hearings. You have treated vast regions of our province as if they don't exist, as if they're irrelevant. The Peace River, Cariboo, Thompson, Okanagan, and Kootenays have all been denied a chance to have a say. For members of the committee who are not from this province, you should know that every one of those places is larger than New Brunswick or Nova Scotia or Prince Edward Island. They should not be forgotten.

It's simply wrong not to have gone there. It's destructive to the entire treaty process. Nothing will do more to erode public trust and confidence in this most important endeavour than to sidestep and short-circuit public debate and avoid answering difficult questions because you don't trust the public with the information.

It's ironic. The Nisga'a come to us and say “We've been shut out, include us”, and yet those who would claim to want to open the doors to the Nisga'a to include them are slamming the doors shut on British Columbians. That's deplorable. You're not just failing people today; you fail future generations because you're sowing seeds of injustice and discontent.

The process is all backwards, and I really think it's important for the committee to hear this. British Columbians want treaties. They want treaties that will reconcile the constitutionally recognized and protected rights of aboriginal peoples with the sovereignty of the crown. They want to negotiate settlements because that's preferable to settlements imposed by the courts. But equally, they want treaties that ensure there is one law for all Canadians, aboriginals and non-aboriginals alike.

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Confrontation and illegal actions are not a legitimate option. People in this province know that if we all work together we can and should negotiate fair and honourable settlements, but we must do it openly and honestly and without fear of recrimination. That's why I'm committed to giving all British Columbians a one-time, province-wide referendum on the principles that will guide our province's negotiating mandate for future treaties.

Make no mistake, a government under my leadership will not accept the Nisga'a treaty as a template for future treaty settlements. We will not endorse any treaty until there's been a genuine attempt to engage all British Columbians in a meaningful debate on the principles that they expect treaties to embrace.

We have grave concerns about several aspects of the treaty, many of which are outlined in our alternative guide to the treaty, which I am tabling with you. We are especially troubled by the unprecedented model of self-government that it will set in stone forever under the Canadian Constitution. In fact, we are so deeply worried about the constitutional implications of this section of the treaty that we are challenging it in court. That court case will go forward expeditiously if this treaty is passed in its present form. I am tabling our statement of claim with the committee as well.

This model of self-government is unconstitutional, for the Nisga'a treaty will create a brand-new third order of government with special status and paramount powers under our Constitution. In at least 14 areas of jurisdiction, Nisga'a laws will take precedence over federal and provincial law; they will be legally superior. No other aboriginal government in Canada has such constitutionally entrenched status. Our Constitution says that all powers are exhaustively held by only two levels of government, the federal government and the provincial governments, yet this treaty attempts to effectively amend our Constitution through the back door and even take away Canadians' democratic right to vote.

Non-Nisga'a residents will be subject to Nisga'a laws and will be forever denied their most basic constitutional right, the right to vote for the government that regulates their lives. That's anathema to Canadian society, and it is no way to build a new relationship with first nations. British Columbians can't understand why the federal government seemed to recognize that when it insisted on a public model of self-government for Nunavut, whereby everyone had an equal right to vote. The answer to old inequities is not to create new inequities—it's equality. Two wrongs still don't make a right.

We strongly support the concept of aboriginal self-government, but we believe in a model of self-government that is delegated by federal and provincial statutes. That's the model that was used just a few short years ago by the federal government in the Yukon settlements. Those 14 first nations in the Yukon will have a delegated model of government that is consistent with our Constitution, not unlike the Sechelt model in British Columbia.

Why on earth would we create a brand new third order of government for one first nation in one province, with special constitutional rights and status that are not available to all first nations? Why should the Nisga'a government and perhaps 50 or 60 other aboriginal governments in British Columbia have special constitutional status and rights that we won't even give to Quebec? The Nisga'a model of self-government was specifically rejected by the majority of Canadians, including a majority of aboriginal Canadians, in the referendum on the Charlottetown Accord. Why should British Columbia be a guinea pig for this unprecedented experiment in government that will be locked in the Constitution forever?

If treaties are to succeed, they must provide certainty, finality, and equality. I've already talked about one way the equality test will not be met. Non-Nisga'a individuals subject to Nisga'a laws will not be equal citizens. Nisga'a women will not have adequate protection under their charter rights. The charter itself provides the Nisga'a government with the means to override any individual rights that are in conflict with treaty rights and powers.

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The principle of equality is undermined at every turn. The treaty package will forever enshrine special commercial fishing rights based solely on ethnicity. That's not equality; it's discrimination. The rule of law will not be equally applied to all British Columbia citizens where Nisga'a laws are allowed to override federal or provincial laws. Moreover, British Columbians won't be treated equally within Canada. We alone will have a third order of aboriginal government that exists in no other province.

Nor are certainty and finality achieved. Some 52 areas of the treaty require ongoing and future negotiation. If any other first nation negotiates a more favourable tax treatment in their treaty, the Nisga'a can insist on renegotiating to gain the same deal.

Perhaps even more importantly, recent court decisions should give us all pause to think about what each and every word of the treaty says. The Marshall decision points out that even treaties that seem perfectly clear on the surface can be dramatically reinterpreted in the courts. So we'd better be very sure about what treaties mean before we set them in stone under the Constitution.

Virtually every paragraph of the Nisga'a treaty could be a potential legal quagmire unless we take the time now to ask and answer every possible question on the meaning of the words that are used. That's why my colleagues and I spent so much effort to address each paragraph during our committee stage in the B.C. legislature. If nothing else, the courts need guidance from all of us as legislators—from all of you—about what we mean by this historic document that will be protected by the highest law in our land.

Consider for example paragraph 30 of the chapter on self-government. That paragraph creates constitutional obligations for provincial government to pass four tests before it can even amend its own laws. It's an incredible consultative and administrative burden on the province that will only create new uncertainty. The uncertainty that now exists with respect to undefined aboriginal rights will be reflected and will continue on with new uncertainty in these new defined treaty rights in the Nisga'a treaty. If replicated 50 or 60 times in other settlements, it will create a brutal bureaucratic nightmare forevermore.

How will other provinces feel about having this model of self-government imposed on them, with all of its concomitant special rights and obligations? One day in the not-too-distant future, the other provinces will wake up and find their numbered treaties are being reopened. They will find their citizens' constitutional rights are being compromised and undermined before they even know it. Maybe then the concerns I am expressing today will suddenly become relevant to the rest of Canada.

Better yet, I urge you all to listen to the concerns that I and others have outlined here and to read the materials that are part of our submission. I urge you to carefully consider what this treaty will really mean to British Columbia and to our country. I urge you to consider that the authors of this treaty, however well meaning, have not got it right. If that's the case, is it not your duty to identify and insist upon fixing those flaws before the treaty is passed into law?

I suggest that if any of us fail that duty, we fail our office, we fail ourselves, we fail our country, and we fail this province. We need treaty settlements that provide certainty, finality, and equality. We need treaties that will respect the existing rights of first nations without creating new rights that will permanently divide British Columbians and create new tensions and inequities.

We need treaties that will protect the rights of all Canadians without selling out the right to vote or constitutionalizing a recipe for reverse discrimination. At a bare minimum, we must be sure beyond a shadow of a doubt that treaties are constitutional. We must ensure they reflect a common vision for reconciliation that has passed the acid test of democracy.

So I ask you today to open up your minds and to work with British Columbians to build treaties that do reflect our fundamental values as Canadians. Thank you.

Voices: Hear, hear!

The Chair: Thank you both, Mr. Campbell and Mr. Gibson.

We'll commence our rounds of questioning with Mr. Lunn.

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

I want to thank both of the Gordons for those eloquent presentations. I just wonder if there are any more Gordons out there. That must be the magic word today, after listening to those presentations.

I'm going to address one question to you, Mr. Campbell, and then my colleague Mike would like to throw a question out before you answer.

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Both of you alluded to this right at the beginning: Is the government sincere about actually listening and changing anything? I'm concerned they're not.

I think it's highly probable, and I hope you'll become our next premier. And there are many people who share that view with me as well. We're seeing a number of concerns from the neighbouring aboriginal people, such as the Gitanyow, and their conflicts. There's a potential for violence, a very real one, that they brought before this committee a few days ago. You're going to be left with the fallout and having to deal with that.

You answered a lot of my questions in your vision on how we need to deal with treaties, and they are very important to resolve these. I share your views on that. But we're going to be left with some of the problems in the fallout, and you're likely to be the premier who's going to be charged with that responsibility. How will you deal with it?

Just before you answer, I'll defer to my colleague, who would like to ask something.

Mr. Mike Scott: I have a very quick question for Mr. Gibson.

Mr. Gibson, I would like it if you could fill the committee in on the national implications of the Nisga'a treaty. I don't think that's been discussed very much here in the last few days, but I know you have some views on that as well.

The Chair: First we'll hear from Mr. Campbell in answer to the first question, and then after he's finished, we'll go to Mr. Gibson for the second.

Mr. Gordon Campbell: It's very important for everyone to remember that we cannot and we will not succeed in negotiating in an atmosphere of intimidation. The laws are there to protect all of us, and we intend to make sure everyone knows that on all sides of the table, aboriginal and non-aboriginal alike.

The most important thing we should remember as Canadians is the law is there to protect every Canadian, and it will be enforced. Anyone who threatens violence frankly is moving in a direction that's absolutely opposite to what we're trying to accomplish with treaty negotiations to make sure we can move forward.

I certainly share the frustration the Gitanyow have. As I mentioned before, we were told the overlapping rights would be resolved; they have not been. They are not the only first nation that is concerned about the Nisga'a treaty. They are not the only community that is concerned about it.

We will enforce the law. We will create, I hope, an environment that's open and honest. I recognize these are difficult decisions that are going to have to be made, but we will not put up with violent activity, and we will not carry out negotiations in an atmosphere of intimidation.

The Chair: Mr. Gibson, please.

Mr. Gordon Gibson: Responding to Mr. Scott's question on the national implications of the Nisga'a treaty, I would divide that into two categories.

Some of Quebec, pretty well all of Ontario, and most of the prairie provinces are covered by existing treaties. The Supreme Court of Canada has been extremely strong on the concept of the honour of the Crown. In the Marshall case indeed they had an imaginative, expanded, outrageous characterization of what the honour of the Crown means.

I think we are going to find it will be a good case for Indian bands with existing treaties to come forward and say “These deals made a hundred years ago are simply unconscionable in the light of Delgamuukw and the British Columbia settlements, and they simply must be reopened to satisfy the honour of the Crown.” And that is where there are already treaties.

In most of the Atlantic provinces, there are some treaties, but they tend to be peace and friendship treaties rather than land settlement treaties. In much of Quebec, particularly the eastern part of Quebec, there are no treaties that have settled land claims. In these areas you are going to see the British Columbia treaties used as a very direct precedent for initial settlement. Therefore it relates in very direct ways to other parts of Canada.

The Chair: You have twenty seconds if you'd like to use it.

Mr. Gary Lunn: I'll defer then. Thank you, Madam Chair.

[Translation]

The Chair: Go ahead, Mr. Fournier.

Mr. Ghislain Fournier: Because our time is short, I will get right to my question.

Mr. Gibson, have you given any thought to the concept of collective rights? Is this really impossible to conceive of in all cases? If so, what of the Supreme Court rulings that recognize collective rights? Would you care to respond to this question?

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[English]

Mr. Gordon Gibson: That was a very fundamental and valuable question, because the story of Canada really is the interplay of individual and collective rights over the years. Being from the province of Quebec, you'll feel that extremely keenly, the collective rights Quebeckers feel to be their own nation, to be themselves.

In other parts of the economy it occurs in much more modest ways. We recognize, for example, the collective rights of trade unions. We say this is an institution that has collective rights, and that has real value.

The test, it seems to me, is to make certain that in all cases where collectivities are established for specific purposes, they exist as the servant of their constituents, rather than being sufficiently powerful to control the constituents. That is my concern about the type of Indian government to be established by the Nisga'a treaty.

The Chair: Go ahead, Mr. Fournier.

[Translation]

Mr. Ghislain Fournier: Mr. Campbell, you stated how important this treaty was to British Columbia and how important it was for treaty settlements to provide certainty, finality and equality. You cited the case of Quebec, and with good reason. Before I put my question to you, I'd like you to know that Quebec, under the Parti Québécois government of René Lévesque, recognized the existence of a people and the principle of equality.

My question is in two parts: If you were in office, how would you conduct these negotiations? How would you go about negotiating in order to conclude a treaty that provides certainty, finality and equality? Unless I'm mistaken, it's my understanding that the negotiations reduced Nisga'a land to eight per cent of the territory previously claimed. Would you restrict the land allocation even further? Would this provide for equality and certainty? I really have to wonder about this, Mr. Campbell. In your opinion, could the amount of land allocated to the Nisga'a have been even smaller?

[English]

The Chair: Mr. Campbell, go ahead.

Mr. Gordon Campbell: I don't think the land allocation is a reflection of equality or inequality. I think it's a reflection of the negotiation that has taken place. The critical component of the Nisga'a treaty with regard to self-government, however, clearly establishes a set of new inequalities that are going to be constitutionalized. They're going to be set in constitutional concrete forever.

The land discussion has gone on. Obviously, a compromise was made. It was part of the negotiation. But the fundamental issue of this negotiation and the fundamental flaw of this treaty is that it establishes two separate types of British Columbians. It establishes a brand-new third order of government with special rights that have paramount powers over federal and provincial laws and takes away the right of Canadians to vote for governments that regulate their lives. I believe that is fundamentally wrong, and it's a fundamental flaw in the Nisga'a treaty.

[Translation]

The Chair: Do you have any further questions? No?

[English]

Ms. Hardy, please.

Ms. Louise Hardy: You mentioned the Yukon land claims. There are first nation governments there that are regulating their own lives through self-government. If I go onto the Gwich'in peoples' lands, I have to live by their laws. This hasn't meant that the Yukon falls apart, that we can't function safely, or that in fact my rights are infringed. If they don't want to have oil and gas development on caribou calving land, they don't have to do that. That's a fundamental decision for them, because as far as they're concerned, their currency is the caribou.

You say you support self-government, but you will only do it if it's how you see self-government should be. The whole idea of self-government is that the Nisga'a people have decided they will have community property, and that's their decision. If we truly do respect self-government, then they should be allowed to determine that. For them liberty may be equal to having that community property, whereas for Mr. Gibson liberty equals having private property. So it's a fundamental disagreement that's obviously at this table.

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Everything you've said has convinced me how much more important it is for me to support this treaty so that these people can move forward and have self-determination and actually look after themselves.

The Chair: Mr. Campbell.

Mr. Gordon Campbell: Let me just say that, as far as I know, in the Yukon there is no section 35 protected self-government arrangement.

Even the federal government when they introduced it suggested that this was a municipal style of self-government. That is not correct. It isn't.

What we should be recognizing, I think, is that with statutory government that's delegated from federal and provincial governments, it is possible for people to make those decisions. I am glad to have them make those decisions.

What I think we should understand is that once this is passed, it will be entrenched for good. The federal government itself argued that case with regard to the Yukon treaties. It's the same case I'm arguing for British Columbians. Frankly, it's the same case I would argue for Nisga'a people.

If the Nisga'a women who are afraid of what's taking place with this and what may happen to their rights are correct, there will be no way we can improve that once this is passed and entrenched in the Constitution. If the families in the Nisga'a are correct about some of their concerns with this, there is no way we will be able to improve it.

So we say let's have self-government. Let's give the Nisga'a people a delegated style of municipal government, a truly delegated style of government, and they will be better off in the long term. They will have the self-determination they need, but we'll be in a position where we can improve and correct things if there are fundamental flaws.

Ms. Louise Hardy: When it comes to the Constitution, the Nisga'a agreement has more flexibility than the Yukon as a territory has, because in order for us to become a province, we need the consent of eight other provinces. That's not the case with the Nisga'a people. They're protected by the Constitution, but they're not enshrined in or excluded from the Constitution even in the same way the Yukon is.

Mr. Gibson alluded to first nations government as being inherently corrupt and that money transferred to them was going to give the first nations government incredible power. The territorial governments get approximately $500 million transferred to them through the northern transfer agreement. I can speak for the Yukon as being an incredibly accountable government. If the people of the Yukon don't like it, they can boot them out very quickly. I don't see transferring money to governments as being inherently corrupting.

Mr. Gordon Gibson: Neither do I. Again, it's a question of scale and of checks and balances.

First of all, the territorial governments are not constitutionalized. They remain creatures of Ottawa, and their powers can be recalled by Ottawa at any time.

Secondly, the territorial governments do not impact the lives of their individual citizens in a way that is sufficient for them to control the votes of those citizens, if they wished to do that. Furthermore, there is much more of a tradition of a vital press in Whitehorse and Yellowknife—and we will see in the new territory—than there is on the average Indian reserve where meetings have traditionally been closed.

We do not know how the Nisga'a people are going to proceed with this. They have, of course, a Constitution, and they have full power to convene their meetings as they wish. But there are many institutional checks and balances built in in the other places. So to me it's that question of scale, and I do not see those checks and balances in the Nisga'a treaty.

The Chair: Mr. Keddy, go ahead.

Mr. Gerald Keddy: Thank you, Madam Chair, and welcome to our guests.

Mr. de Jong and I had the occasion to have this debate in Ottawa for about two and a half hours. It was quite informative, I hope, for both sides.

I must say that I disagree with a number of statements that have been made here, and I think the Nisga'a Final Agreement disagrees with them when you read the agreement through.

There are many issues, and I'm going to try to cover a couple of them and get some answers from the witnesses.

One comment referred to “your average Indian reserve”. The whole point of this is that the Nisga'a lands will no longer be your average Indian reserve. The whole point of this is to take the Nisga'a out from under that umbrella—certainly you can't call it an “aegis”, because it has a different meaning—of the Indian Act, and to allow for self-government and actually advance the Nisga'a Nation.

• 1535

I've written down several points here, and I don't know where to go on them. There are just too many.

Let's talk about the money. Mr. Gibson reiterated that it would cost, they thought, $10 billion, then $15 billion, up to $20 billion, maybe $30 billion, or in excess of $30 billion to settle the Indian treaties in British Columbia. If it does cost $30 billion, that's a tremendous amount of money. That's something all Canadians should be concerned about.

We should also be concerned about the transfer dollars that go to first nations in this country right now. We spend $6 billion a year on Indian Affairs and Northern Development, and $3.6 billion or $3.8 billion of that goes directly to first nations. We are spending money, and we are not getting results for it. Something in the equation has to be changed.

There is one way to change the equation: it's called empowerment. It's called making people responsible for themselves. It's called allowing people to gain economic opportunity.

When we do that as parliamentarians, as members of a provincial legislature, as members of a municipality, or as any elected official, we also have a responsibility to protect the rights of others, and this treaty has also done that. It has protected the rights of non-natives.

I take exception to the comment that we will have people who will not be allowed to vote, who will have taxation without representation. As I explained this morning, we have taxation in this country now without representation, with people who are not allowed to vote.

Now, Mr. Campbell explained very...and I noticed added one thing to his statement, “Canadians”. That's true. But we have permanent residents, who have no intention of ever living anywhere else than in this country, who do not have the right to vote. However, we do tax them.

The fact is, on Nisga'a lands the taxation policy works very clearly. The Nisga'a government controls Nisga'a lands the same as any municipality would control their lands. They have the right to tax Nisga'a people. They do not have the right to tax non-natives. Those non-natives living within the Nisga'a boundaries now will not be taxed by the Nisga'a. They will continue to be taxed by the Province of British Columbia. They're even protected to the point where they own and have access to the roadbeds and the rights of way that lead to their parcels of land.

So there's full protection for non-Nisga'a. In the event that Nisga'a land is sold to a non-native, the Nisga'a relinquish their right to taxation. They give that right up.

I'd like some answers on some of those issues.

The Chair: Go ahead, Mr. Campbell.

Mr. Gordon Campbell: Let me just say that in terms of the cost of the treaty, I think it's pretty incredible that we still don't know the cost. I would suggest to you, sir, that you don't know the cost of the treaty. The federal negotiators don't know the cost of the treaty, or at least they haven't told us the cost of the treaty. The provincial government has not told us the cost of the treaty.

To enter into an agreement without knowing what the long-term costs are does not, it seems to me, make very much sense. We have told been by the head federal negotiator that 75% of the costs of Nisga'a government will still be carried by Canada within fifteen years.

This is not a time when the Indian Act is going to be removed. All the Nisga'a who are living off-reserve are still going to be covered by the Indian Act. That's all been information brought forward through a little bit of the debate we've had, but one of the things we are calling for is a clause-by-clause debate of this treaty so that we have all the information.

I totally understand that you and I may disagree once we have all the facts before us, but I can tell you, all the facts are not before the people of Canada. They are not before the people of British Columbia. In fact, they have been withheld, purposely withheld.

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One of the regions of our province that you're not going to visit is the Okanagan. We have a document on the Okanagan that points out that if this goes ahead, 1,000 farms in the Okanagan could be directly impacted by this type of process, by this type of public policy.

I think we should know that before we make these decisions, because once the decision is made, once this is passed in the Constitution, it is in constitutional concrete for good.

The Chair: No more time, Mr. Keddy.

Madam Karetak-Lindell.

Mrs. Nancy Karetak-Lindell (Nunavut, Lib.): Thank you.

You made some reference to Nunavut, and I'm going to have to correct you on that. We don't have self-government in Nunavut, to begin with, and it was not insisted by the federal government that it be a public model of self-government. So the territorial government is very separate from the land claims agreement that, as a Nunavut beneficiary, I have the right to vote on.

I sincerely hope the rest of your information on Nisga'a is not like this.

When you talk about Nisga'a agreements and the rights of people, I think you tend to forget that Nisga'a had a part in these negotiations, that they made a decision to accept the agreement. They negotiated this over many years, in good faith, and accepted it. They compromised, but they felt this was the agreement they could live with for the future of the Nisga'a.

You seem to talk about them as though they didn't have a role in the negotiations. It seems to me that you know better what's good for the Nisga'a than they do, when they have made a decision to accept this agreement.

My question is, what would be your alternative to this agreement for the Nisga'a?

Thank you.

The Chair: Mr. Campbell, go ahead.

Mr. Gordon Campbell: Let me say first that I think the Nisga'a have been very active and very patient in their negotiations. The Nisga'a people have been included in looking at whether or not they approved of this, and I respect that. All I am asking is that British Columbians, the people who are not Nisga'a, who are going to be directly affected, have the same opportunity to speak. I am asking that aboriginal British Columbians who feel that they will be negatively impacted by this treaty have an opportunity to speak. I am asking that all the rest of British Columbians have an opportunity to speak and to be heard.

In fact, I believe the model the Nisga'a followed would be one that we could emulate. They actually went to their people and asked what their mandate should be. They got approval for their mandate from the Nisga'a people. When they completed the negotiation, they went back to the Nisga'a people and said “Is this it? Have we made the right choices?”

I take my hat off to the Nisga'a for the work they've done, and in terms of that, I think we have failed those who are not Nisga'a. We have not included British Columbians in this process.

Mrs. Nancy Karetak-Lindell: You're talking about the referendum, I imagine.

Mr. Gordon Campbell: That's one way of doing it, yes.

Mrs. Nancy Karetak-Lindell: Okay. I know there was some discussion about that this morning.

I have a hard time understanding how someone who doesn't understand a specific culture and language has the right to vote on whether that person has the right to use his culture and language in his own community. It's difficult for me to understand how a referendum would have the best interests of the Nisga'a people at heart.

What you're saying is that you're asking a group of people who clearly don't understand the Nisga'a and their culture to vote on something that belongs to the Nisga'a. That's the way I understand it, anyway, if you're asking for a province-wide referendum.

Mr. Gordon Campbell: We're suggesting that there should be a province-wide referendum on the principles that would inform all treaties, not simply the Nisga'a treaty.

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Do we think treaties should reflect the principle of equality? Do British Columbians want to establish a brand new third order of government that has the opportunity to pass laws to take precedence over federal and provincial laws? Those are real questions that I think we should be able to ask citizens in a democracy. We should engage them in that debate. We can take that mandate forward to the table just as the Nisga'a have taken their mandate forward to the table.

In doing that, when we do negotiate and we do come to a conclusion, I believe we will have an agreement that will work for everyone.

We have not included British Columbians in that. You may know this, but in British Columbia we have the Constitutional Amendment Approval Act. It requires that before we amend the Constitution, British Columbians be included in deciding whether or not they want that.

What I know, and what I believe the committee knows, is that the only time British Columbians have been asked this question they have rejected establishing a constitutionally entrenched new third order of government.

The Chair: Time is up, Mrs. Lindell.

We have time for another five minutes from the Reform and five minutes from the government, if you'd like.

Mr. Lunn, are you taking the question?

Mr. Gary Lunn: Sure. Thank you, Madam Chair.

I've been listening to the questioning, sitting here all day, and listening to all of the members of Parliament. Unfortunately, I don't see anybody here who's really receptive to actually going back and making changes. In fact, I would put my reputation on it. I will be absolutely and utterly amazed if one word gets changed in this entire document or legislation.

Having said that, I listened to Mr. Gibson, who very eloquently stated that in fact this is not a template but a floor. That's a challenge that subsequent governments are going to be faced with. As you know, there are many treaties to come forward in British Columbia.

I've studied the model of the Maori people in New Zealand. I was so impressed with what they did with their aboriginal people. The government basically said, okay, we have $600 million or $700 million—I forget the exact number—and here's the pot. We have ten years to resolve all land claims, and at the end of the day, everybody is going to be based under the principle of equality, much like what Mr. Campbell has stated.

That met with some resistance, but at the end of the day it was very successful. When I spoke with the Maori people over there, the first thing they said to me was “I'm a New Zealander, and very proud of it.” The only right they have that's different from any other New Zealander's is the right to fish for ceremonial purposes or for themselves. Other than that, they have no special status and have done exceedingly well.

How do we move forward in trying to negotiate the rest of these land claims? Can we do that with the Nisga'a agreement out there as a model? Can we move forward into these other 49 and say, well, that's out there, and that's not what we would have done; we're the government of the day now, but this is our new model? Can we go backwards in trying the fix the Nisga'a? Is it possible?

There are some good points to it, but there are some fundamental, fatal flaws, as you pointed out, with the self-government provisions.

So I would like your comments on that.

Mr. Gordon Campbell: Well, pending the outcome of the court case with regard to self-government and taking away people's right to vote for a government that's regulating their lives, I don't think fixing the Nisga'a treaty after the fact is going to be very easy. In fact, I think it's virtually not going to happen.

As Alex MacDonald, a former New Democrat Attorney General in British Columbia, once said, once this treaty is passed it's fixed in constitutional concrete.

Does this mean that this is what we have for good for everywhere else? No. I believe our governments actually have failed aboriginal people because they haven't brought non-aboriginal people into the room, up to the table. They've deliberately held them out. They have consistently betrayed, through their undertakings, the public in British Columbia, and that is simply wrong.

No matter whether people agree or disagree with what's taking place, we are going to be far better off with a full, open, detailed debate. So when, for example, a government in British Columbia carries on and spends $8 million pushing out propaganda that says this is a municipal style of government, and it takes a couple of hours of legislative questioning before the Attorney General of British Columbia says “Well, no, it's not; that isn't correct”, that has undermined a reservoir of goodwill to resolve these treaties.

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British Columbians know we need to resolve these treaties. They understand there are aboriginal rights in our Constitution. They want to move forward in doing that. But I do believe the critical first step is to include them in a province-wide referendum on the principles that will inform all treaties, so at least the provincial negotiating group will go in with a public mandate to negotiate around the principles that are there for us as a framework.

Mr. Mike Scott: I have one very short question, Mr. Campbell. And by the way, I really appreciated your presentation here today. It's very much appreciated. I think all people who are watching from British Columbia would appreciate that you're taking the position you are.

We've heard many times from various people appearing before this committee and by some of the committee members themselves in the House of Commons that the people of British Columbia in fact support the Nisga'a treaty. I would just like to ask you, in your position as leader of the official opposition in this province, could you tell us how you would see that, how you would gauge the level of public support or lack of support right now in British Columbia for the treaty?

Mr. Gordon Campbell: I think the more people learn about what's in the treaty, the more nervous they get about it. There is strong support in the province, as I tried to mention in my presentation, for resolving treaties and moving forward.

The problem we face is that when questions aren't answered, when debate is closed down, and when the public is blocked out, people are naturally going to have some fairly substantial and significant concerns. I frankly believe that over the last few months we've watched as support has eroded for the treaty. To be candid, as you go through the Okanagan and you talk with people, they have grave concerns and real fears. When you go through the Cariboo and you talk to people about what's taking place, they have grave concerns and real fears. If you go up to the northwest—I'm not sure what happened in your meeting in Terrace—you'll hear from people there that there are people who support the treaty, but there are also people who are very concerned about it.

The problem with closing off debate and not answering the difficult questions that are out there is it creates an even larger environment of uncertainty. I think that has been a real shame. In fact I can tell you, as the leader of the opposition in the province of British Columbia, when our government decided to guillotine debate in the house and stop us from going through clause-by-clause, as they had promised us on the treaty and its side agreements and appendices, there was still hope in British Columbia that that would be a process that would take place in Ottawa, in our Parliament. Our MPs would have the chance to ask the questions that British Columbians are asking. I think because those questions have not been answered, British Columbians' support for the treaty is eroding. I think that's something people should be aware of.

The Chair: Thank you.

We'll go to the final five minutes for Mr. Bonin.

[Translation]

Mr. Raymond Bonin (Nickel Belt, Lib.): Thank you, Madam Chair.

[English]

Mr. Campbell, the responsibility of Parliament, of which I am a member, and legislatures, of which you a member, is to protect and defend each individual's rights. That means protecting inherent rights and minority rights. I'm interested in knowing, after having heard your presentation, to what extent you are prepared to defend inherent rights and minority rights in the province of British Columbia.

Mr. Gordon Campbell: I believe that both inherent rights and minority rights are protected in our Constitution. I don't believe we protect them by undermining that Constitution or undermining the rights of other Canadians.

Mr. Raymond Bonin: Then how can you assure that inherent rights and minority rights would be protected, defended, and assured in a referendum by the majority affecting the rights of the minority without their consent? I'd like to get that on record.

Mr. Gordon Campbell: There is absolutely no way that a referendum will take away any rights from any Canadian. We're not in a position to do that. To be candid, I think that the people who suggest that a referendum is a way to try to take away rights don't understand that our Constitution.... I'm talking about our Constitution, about using our Constitution to protect the rights of aboriginal people and non-aboriginal people alike.

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There are two ways in which we can define those aboriginal rights: we can negotiate to define them clearly, or we can litigate to define them clearly. We understand that. We want to negotiate. But the rights of minorities and aboriginal people are securely protected in our Constitution today, and they will remain protected in our Constitution.

Mr. Raymond Bonin: And when you negotiate and when negotiations break down, do you then have a referendum by the majority, thus affecting the rights of the minority?

Mr. Gordon Campbell: No.

Mr. Raymond Bonin: At what point do you have a referendum?

Mr. Gordon Campbell: We have a referendum at the beginning of the process, when we talk to the people of British Columbia and ask for direction from the people of this province on the mandate that we would take to the treaty table. The people in British Columbia want to resolve treaties. Don't have the illusion that we don't, because we do. But we believe we resolve treaties on the basis of equality. For example, do we want to have a new third order of government? No one has asked anyone in British Columbia if we want a brand-new, third order of government. We should ask them if they want it. I may disagree with it, but if British Columbians want it, fine, they can have a new third order of government. But we should at least have the democratic principle to ask them first before we try to impose it on them through the back door.

Mr. Raymond Bonin: Therefore, your negotiating team at the beginning would have the mandate to negotiate the affecting of the rights of minorities. At that point, the minorities would come to the table with you on your rules.

Mr. Gordon Campbell: My reading of the Canadian Constitution is that minority rights are protected today. A referendum will not take away anyone's rights.

Mr. Raymond Bonin: And my question that I asked at the beginning is how you would assure that.

Mr. Gordon Campbell: We believe in the Canadian Constitution, as I assume you do.

A voice: Then why do you need a referendum?

Mr. Raymond Bonin: The question has been asked about why you need a referendum if it's assured.

Mr. Gordon Campbell: This is not a referendum on minority rights. Frankly, I think to suggest that it is is simply wrong.

Mr. Raymond Bonin: But it is a referendum by the majority affecting the minority. You can't deny that.

Mr. Gordon Campbell: No.

Mr. Raymond Bonin: Okay, thank you, Madam Chair.

The Chair: Thank you.

That is the final round of questions. It remains for me as chair, on behalf of all of the members of this committee, to thank you for your contribution today. The day has been excellent in terms of giving us a balanced approach and a balanced view of the views of British Columbians, and we appreciate your contribution.

I'd also like to thank the audience. If you have any briefs, please leave them at the table.

I would remind the committee that we sit tomorrow in Vancouver from 9 a.m. to noon, and then again all afternoon.

Thank you very much. This meeting is now adjourned.