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]

Wednesday, November 24, 1999

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[English]

The Chair (Mrs. Sue Barnes (London West, Lib.)): Welcome. This is meeting number 17 of the Standing Committee on Aboriginal Affairs and Northern Development. The order of the day is the continuing study of Bill C-9, an act to give effect to the Nisga'a Final Agreement.

We have three witnesses and their assistants with us today. One of our witnesses will be a little late.

I will start off by welcoming Chief Phil Fontaine, the National Chief of the Assembly of First Nations. He has with him his legal counsel, Mr. Jack London.

As an individual, we have former chief Dr. Billy Diamond appearing before us today. Could you introduce the gentleman beside you?

Mr. Billy Diamond (Individual Presentation): Thank you, Madam Chair. With me is the legal counsel, Harold Pohoresky.

The Chair: Thank you.

From the Congress of Aboriginal Peoples we have the vice-president, Frank Palmater.

Welcome to all of you. I am going to ask the three individuals invited today to make separate presentations of 10 minutes, preferably, 15 minutes maximum. That way we can have five-minute rounds for our panel members to ask questions. I remind you that the rules of this committee mean that the five minutes are for the questions and answers to accommodate more numerous questions from our committee members.

With that, I would like to invite our first presentation by Chief Phil Fontaine.

Commence when you are ready.

Chief Phil Fontaine (National Chief, Assembly of First Nations): Madam Chair, members of the committee and all present, thank you for this opportunity to appear before you today.

I would first like to introduce my colleague at the table, Jack London, who is legal counsel to the Assembly of First Nations. At appropriate times in our discussion this afternoon I may ask for his assistance on particular issues.

The Assembly of First Nations, as you know, represents 633 first nations in Canada and all first nations citizens in this land, on and off reserve. We are a government with a constitutional mandate from our people resulting from democratic, transparent, and accountable electoral processes at each first nation level and in turn for the national office.

First nations in Canada today face many challenges, ranging from seeking mechanisms to end crushing poverty among many of our citizens to finding mechanisms for economic development and job creation for our people, to the establishment and recognition of first nations governments. These governments are based on constitutionally protected aboriginal rights, treaty rights arising from the historic treaties, modern-day treaty rights and aboriginal title. Progress on all these issues, though constant and progressive, is slow and frustrating.

Perhaps nothing is more frustrating for first nations and for the Assembly of First Nations than the tendency of Canadian governments to enter into negotiations with us, to conclude arrangements, to make promises and then to either be very slow to implement them or not to implement them at all.

The Supreme Court of Canada has over and over again defined the obligation of Canada to first nations as one of a fiduciary that must deal with first nations and take account of their needs and concerns, not only through consultative processes but always in the context of observing the honour of the crown. Historically, all too frequently that honour has been observed in the breach.

The Nisga'a treaty and resulting legislation affords all governments in Canada and the people of Canada the opportunity to do the right thing and to do so in a timely fashion. The treaty represents the fulfilment of a long, complex, and difficult process of negotiations between three levels of government in Canada: the Nisga'a, Canada, and British Columbia. It is a consensual treaty in which all parties have been realistic in the give and take of hard bargaining at the table.

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The product of their labours has already met favour with the Nisga'a people and with the Government of British Columbia.

Notwithstanding the best attempts of reactionary forces in British Columbia, in certain political parties, and elsewhere to describe the terms of the treaty in inappropriate and misrepresentative terms, the truth is that its contents are fair, just, and reasonable, not only because each and every part of the treaty is defensible, but also because the very process of its negotiations is transparent, civil, and comprehensive in a model of modern governance.

I do not intend to address you formally today on the text or details of the treaty, though I am happy to respond to any questions you may have. It is my own view, and that of the Assembly of First Nations, that it is appropriate for the parties themselves, particularly the Nisga'a people, to articulate and explain the essence of the treaty arrangements. I will therefore restrict my formal remarks to the challenge you and we all face today in light of the Nisga'a process, that is, to find a more certain mechanism to define our partnership in this land.

Section 35 of the Constitution Act envisages exactly the process that brings us here today. It grants constitutional protection to both existing aboriginal and treaty rights and to those now negotiated in modern land claims settlements and treaties. It is the mechanism through which the other governments of Canada at the federal and provincial levels can and will recognize the inherent right of self-government and the inherent right or self-determination of first nations peoples in Canada.

Those rights are not granted by section 35 of the Canadian Constitution. They existed long before European settlement, but they are recognized and protected within the fabric of Canadian law by virtue of section 35.

Frankly, it would be inexcusable—indeed, it would be a return to old policies of seduction, racism, and isolation—for Canada to do anything else now but to implement the treaty and give it full force and effect on its terms and with great speed and dispatch. To do anything else would be to blacken the reputation of Canada in the international community and give fuel to those in the first nations communities who would resort to militant action based on the premise that first nations citizens and government still cannot trust the other levels of government in this land, even after a process of negotiation.

All Canadians today are faced with a new threshold. The decisions of the Supreme Court of Canada in Sparrow, Sioui, Badger, Delgamuukw, and, most recently, Marshall—and I should say both Marshalls—have sent a clear, loud, and resonant message throughout this land that first nations rights exist.

Those rights include historic and current claims to a rightful share of the resources of this land. These rights include self-government. These rights include the use and occupation of lands and waters. These rights have never been ceded and surrendered. These rights will be protected by the courts of this country, if not by its governments, and in the end they will be defended forever by the first nations peoples themselves.

These rights, and our relationships, are best negotiated, not litigated. We therefore find ourselves at a time in history when progress, development, and continued economic success for all of us depend on our finding and defining new mechanisms to bring certainty to these rights through recognition by other governments and the people of Canada and on our defining much more precisely the nature of our partnership in the fruits and resources of this land.

The Nisga'a treaty is an example of such an exercise. It brings reliability and certainty to the relationship and it allows all parties, public and private, governmental and individual, to develop politically, spiritually, and economically with confidence and assurance.

The treaty brings to an end, as it should, the current comprehensive claims policy of the Government of Canada, which uses the extinguishment of first nations rights as a core prerequisite to negotiations. That policy is outmoded, outdated, anachronistic, and inappropriate. It must be withdrawn and redrawn, this time after a full and complete consultation process with the first nations of Canada through the Assembly of First Nations.

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In 1998, after consultation with the Assembly of First Nations, the Government of Canada issued a historic set of promises entitled “An Agenda for Action with First Nations”, sometimes referred to as Gathering Strength.

In it, Canada recognized not only the requirement of adopting a new comprehensive claims policy and process, but joint federal government and first nations exploration of possible methods, other than surrender or extinguishment of aboriginal rights or aboriginal title, to provide clarity, stability, and certainty through comprehensive claim settlements that would be supported by federal and provincial governments, first nations, and the public.

It also promised to partner with first nations a strategy to deal with lands and resource issues, including working with provinces, to encourage co-management and further programming opportunities to enhance the value of reserve lands and increased access to and ownership of land and resources.

It promised to explore with us and develop section 35 protection and other mechanisms to recognize first nations governments and to establish a framework for working out jurisdictional and intergovernmental relations.

This committee ought to pay close attention to the government's promises and see to their implementation. A copy of the document has been or will be filed with the committee for review.

The Nisga'a treaty is a step in that direction—an important but small step. Much more must be done. The notion of extinguishment of rights as a prerequisite to bargaining must be relegated to the historical trash bin, just as has been done in the Nisga'a treaty, which consensually defines rights rather than requiring any of the parties to give up all rights.

Those first nations that choose to define their relationships with the other governments of Canada and to the resources of this country through a similar treaty process must be encouraged and financed to do so quickly, efficiently, and effectively. Other processes must be developed that meet the needs of other governments of Canada and first nations governments that choose to engage in non-treaty processes as mechanisms for the determination of the continuing relationship between first nations and its neighbours.

Above all, our mutual future economic development and well-being requires that all parties, first nation and non-first nation alike, act with integrity, dignity, and honour. Economic activity requires a context of reliability and certainty. Investment will be made only when investors are confident and secure.

To facilitate that context, the Government of Canada must bring its policies of claim settlement into the new millennium, including the establishment of an independent claims tribunal to deal with outstanding first nations claims. It must reassess and renovate its comprehensive claims policy and process. It must develop acceptable processes of negotiation for all first nations whose relationship to the land and resources must be articulated with the kind of certainty and reliability that prosperity and economic development require. It must honour its processes and their outcomes by full, speedy, and effective implementation.

The Nisga'a treaty must now be accepted by the Parliament of Canada without further delay. Thank you.

The Chair: Thank you.

Dr. Diamond, go ahead whenever you're ready.

Mr. Billy Diamond: Thank you, Madam Chairperson, members of the committee, and Chief Fontaine. I would like to say a few words before I get into my text.

The Nisga'a treaty process has been going on for over 20 years. I am familiar with the former leaders of the Nisga'a people, especially the late James Gosnell, whose definition of aboriginal rights remains in the laurels of constitutional history as we were negotiating the Constitution in 1982. He said, “Aboriginal rights is the whole package, lock, stock and barrel.” Those were his words. It is with this definition that we look at this particular piece of legislation and this treaty.

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The Nisga'a people were always setting a precedent. They set a precedent in their court case, the Frank Calder court case. They set a precedent in respect to aboriginal rights. The Calder case was the turning point in the definition of aboriginal rights in Canada. Prior to that, Prime Minister Trudeau refused to recognize any existing aboriginal rights. But after that Supreme Court of Canada decision, and particularly the dissension of Justice Emmett Hall, it was then that the federal government recognized that aboriginal rights existed in Canada. Thereafter a new policy came into being: to negotiate with aboriginal people.

Shortly after 1970, the negotiations started, and because of the Nisga'a people and the Frank Calder court case, we, the Crees in northern Quebec and the Inuit of northern Quebec, negotiated the first modern land claims treaty, the James Bay and Northern Quebec Agreement, in 1975. I was the senior negotiator for, the main architect of, and a signatory to the James Bay and Northern Quebec Agreement. But congratulations have to be extended to the efforts of the Nisga'a people. We have to congratulate the negotiators on both sides.

I've had 30 years of experience negotiating various agreements, including land claim agreements, and also the Constitution in 1982. Based on the years of experience, I can tell you negotiations are very hard and very tough, especially when you involve two or more different parties. It takes strength. It takes the spirit of the people to accomplish what the Nisga'a people have accomplished. They deserve more than just this long process of waiting for the legislation to come into force. They deserve our wholehearted support and they deserve their legislation to come into force.

When negotiations take place between aboriginal people and governments, we negotiate to get away from the status quo. We negotiate to make a change. We don't like the situation we're living in. We don't like the situation we're caught in. Therefore we negotiate for the betterment of our people, to advance our people, and to get out of the rut we're in.

Unfortunately the lands claims policy in Canada is not the very best policy. It's the only one we have. It's the only one we are working with. But the Nisga'a people have developed an agreement they have negotiated for their home. It is for their people. It's time to get on with the enforcement of these rights they have accomplished.

Yes, there may be overlapping jurisdictions and there may be overlapping areas with other native tribes, but there can be reciprocal rights in certain overlapping jurisdictions. We aboriginal people have always learned to share. We've learned to share with our families; we've learned to share with other tribes. If we cannot share with other tribes, how can we share with other non-aboriginal governments?

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So whatever the solution is in respect to overlapping jurisdictions, the solution is not in this room. The solution is back in our communities and back with our people, and it is through negotiations.

It is time to get on with the legislation. This is what the Nisga'a people have negotiated. This is what the Nisga'a people want. They know what's best for them. Perhaps the Nisga'a treaty is not perfect, but neither was the James Bay and Northern Quebec Agreement. The James Bay and Northern Quebec Agreement in 1975 created a lot of chaos and debate. The same debate and perhaps the same attitudes are being created as a result of the Nisga'a treaty. But it is their rights they have negotiated. This is a Nisga'a treaty. It's for the benefit and advancement of their own people.

As a negotiator and as a person who has been involved in negotiations, I know we enter into negotiations to lead to an agreement. We want all those agreements to have force of law, because we don't want anybody else to come along in the future and say, “Well, you don't have those rights.” We not only want those rights in agreements, but we want them in legislation as well.

That's why the Nisga'a legislation is so important. We want the legislature to protect the rights that are necessary in respect to our treaty process. These rights and these agreements are part of section 35 of the Constitution. That's the way we negotiated in 1982.

I was the senior constitutional negotiator for the Assembly of First Nations in 1982, and that's the way we negotiated sections 35 and 25. When agreements came into place, they would become treaties, so henceforth not only would you have agreement rights, but you would also have legislation rights, and now you would have constitutional rights. They would be guaranteed and entrenched in the Constitution for protection of future generations. That is the way our people wanted those rights protected. Now we're asking the House and the committee to take a look at the Nisga'a treaty and to recommend its passage.

I do, however, want to talk about certain topics. The first topic is in respect to treaty implementation. Government is ill equipped to implement land claims agreements and treaties. The challenge is to implement the treaty in such a way as to balance the very special needs and rights of aboriginal peoples battling for survival on traditional lands with the need for economic exploitation of natural resources on these lands.

Land goes to the very heart of aboriginal identity and culture. Aboriginal connection to the land is sacred and must be preserved and protected. But economic exploitation of the land can help aboriginals address the challenge of aboriginal self-reliance, self-sufficiency, and self-actualization. This is the dilemma. The opportunity is to come to terms with this challenge through negotiations in an atmosphere of mutual respect and recognition of the very special needs and rights of one another.

Surely a cause for concern is all the social afflictions, already well documented, that plague aboriginal communities and individuals. We all feel a very deep shame for the sorry state of affairs. We can all do more. In my 25 years of experience of implementing or not implementing the James Bay and Northern Quebec Agreement, to a certain extent our expectations have not been realized. There are still outstanding issues, such as the sharing of resources, economic development, local government, protection of the environment, and so on, that are currently bogged down in the courts with no end in sight. Unemployment is high, our people are suffering, and compared to the rest of Canada and other aboriginals, we are at an extreme disadvantage. We have not made as much progress as I would have liked.

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What I do like about the Nisga'a treaty is the dispute resolution. Unlike the Nisga'a treaty, there are no provisions in the James Bay and Northern Quebec Agreement for dispute resolution. Instead, we are left with the most costly and least effective method of fighting it out in the courts. More and more we are in the courts.

I was on the board of directors of the Northern Flood Agreement, and we ended up in one year with 185 arbitration cases in the courts. That's not the solution. We are in the courts and likely to be there for a long time to come. This is wrong and most unfortunate, and also very expensive. It is not what I envisaged when I signed the agreement. We aboriginals and non-aboriginals are squandering our scarce resources, arguing about what was said and meant in a treaty negotiated 25 years ago, instead of negotiating a better future. We are looking backward and not forward to securing our future.

The Crees of northern Quebec are currently suing the federal and provincial governments to the tune of billions of dollars for non-implementation of the James Bay and Northern Quebec Agreement. We are locked in a struggle that is costing both sides millions in court costs and lawyers' fees. The tragic part is that what we need we cannot get from the courts. The courts will not tell me that I have a forestry sawmill, or that I have certain obligations. Courts are limited to damages and cannot take the place of the legislature.

In the meantime, the real needs and afflictions of members of our community go unattended. I am glad to see that there is a provision in the Nisga'a process.

One thing is clear. There can be no sustainability without development of a healthy private sector on aboriginal lands. The private sector on aboriginal lands is virtually non-existent compared with other aboriginal communities. Who is to blame? Just look at the Indian Act.

My colleague, Chief Fontaine, made it very clear that there needs to be a tremendous overhaul. Under the current set of rules and laws, aboriginals are doomed to a dependency syndrome. As a leader I am tired of coming to Parliament. I am tired of coming to ministers and asking for my share. I want to be self-sufficient. I want my people to be self-sufficient. I want my people to be debt free. Subsidies are killing our people. It is time to get away from the dependency syndrome.

More needs to be done now. The government is too short-sighted. We need a complete overhaul and a massive infusion of investment capital, human resource training and education, as well as infrastructure.

We need to abolish the Indian Act and start anew. We need a new friendly business environment that will promote aboriginal entrepreneurship. We need to partner with off-reserve businesses. We need a regulatory environment that is conducive, not a hindrance, to further development of the private sector.

We should ensure that the Nisga'a treaty promotes the development of the private sector on aboriginal land. It needs to strive for economic self-reliance for aboriginal peoples. Aboriginals require greater government support for the creation of business opportunities on aboriginal territories through special programs designed for that purpose. Treaties ought to encourage this.

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What does this mean? Implementation of the treaty will determine the success of the treaty. The committee needs to recommend to the House the immediate passage of the Nisga'a legislation. Good faith negotiation, not litigation, is the path to pursue for implementation. The government also has to get ready to implement modern-day treaties—not only Indian governments, but the federal government, which is not structured to implement land claim treaties. That is the downfall of the James Bay and Northern Quebec Agreement.

Implementation negotiations must take place on aboriginal lands, not in faraway capitals by bureaucrats who are not authorized to respond to the real requirements of aboriginal peoples. What is required is imagination and flexibility in approaching the needs of the individual communities. Economic self-sufficiency through development of a healthy private sector is the only economic salvation possible. We must strive to get away from the dependency syndrome of public handouts.

We need a more friendly business environment on aboriginal lands that will promote the growth of the private sector. The governments need to play a leading role in creating a friendly business environment through incentives. We need more public sector programs that will ensure economic opportunities for the development of a private sector.

The government must change. Indian governments must change. More and more, we need to see partnership in development. More and more, native people are asking for revenue sharing. There must be a policy of revenue sharing. That can be accomplished only through negotiations.

Finally, the Indian Act must change. It needs a complete overhaul.

I urge you to bear the foregoing considerations...and I urge a speedy passage of legislation, which is necessary for the Nisga'a people. The Nisga'a people have been waiting a long time for the result of the negotiations. My people have been going through the same wait as well. My people have been waiting 25 years for certain obligations to be implemented. I don't want the Nisga'a people to go through the same wait as we have.

Thank you, Madam.

The Chair: Thank you very much.

Our final panellist for today is Mr. Palmater. Go ahead please, sir.

Mr. Frank Palmater (Vice-President, Congress of Aboriginal Peoples): Thank you very much Madam Chair. My name is Frank Palmater, and I am the vice-president of the Congress of Aboriginal Peoples.

The Congress of Aboriginal Peoples, founded in 1971 as the Native Council of Canada, is the national advocacy organization that opens its doors to some 850,000 people who live away from the first nations communities, be they registered, unregistered, treaty, non-treaty, scrip, or non-scrip. In essence, the principle of the organization is to address the lack of recognition of ourselves as aboriginal peoples and to challenge the exclusion of our constituency from federal responsibility.

The paper we have on the Nisga'a is titled “What is wrong with the agreement?” What we meant to say was “What is wrong with the agreement: some points for concern”. We believe the Nisga'a agreement provides a clear picture of the federal and provincial governments' intentions in entering into modern treaties and the mechanisms they will employ. The Nisga'a agreement must be measured between the indigenous desire to achieve self-determination and decolonization and Canada's desire to assimilate indigenous peoples into Canada as a minority interest group with no unique features as a people or status in international law.

Canada and B.C. have said that the purpose of treaties or modern land claim agreements is to achieve certainty. The purpose of certainty is to exhaustively and completely set forth all aboriginal and treaty rights. Rather than simply accepting the existence of aboriginal title as ownership and jurisdiction over lands and resources, certainty limits and defines aboriginal title and rights so that they fit within Canadian laws and ideas about land.

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Aboriginal title to lands and resources existed at the time when the crown asserted sovereignty. This title was never extinguished. Canadian and B.C. sovereignty or ownership of land and resources is not challenged. Canada and B.C. do not have to prove their title or jurisdiction; it is simply assumed. Indigenous groups are given limited recognition of their ownership and jurisdiction of a small parcel of their former traditional territory. No aboriginal title or rights will survive exclusion from the written agreement. All aboriginal title and rights will be transformed into contractual rights.

The Nisga'a agreements extinguish all aboriginal title of the Nisga'a nation to the entirety of their traditional territory and convert Nisga'a original title to fee simple. Nisga'a settlement lands will be approximately 1,990 square kilometres, or roughly 8% of the Nisga'a original traditional territory.

Under the Nisga'a agreements, Nisga'a rights to fish and wildlife are reduced and only equal to commercial and recreational interests. All aboriginal treaty rights to fish and hunt should be respective of the Supreme Court rulings in Delgamuukw, Sparrow, Marshall, Simon, and the list goes on. None of the language in this agreement should either abrogate or derogate from that which has been ruled on by the Supreme Court of Canada or the Constitution of Canada.

Both our own responsibilities to our lands and peoples and the Supreme Court of Canada have recognized that indigenous peoples have the power and right to decide to what uses our aboriginal title lands and resources will be put. Canada and B.C. have attempted to reduce this right to a form of consultation, or co-management, which is essentially the right to advise and offer an opinion, with no real say or power over land or resource use decisions.

Isn't it ironic—and it should be pointed out to this committee at this time—that for Nisga'a in their comprehensive land claims agreement, it seems that 50% of those who are entitled to vote and do vote is all that is needed to ratify this agreement, but secession of a province from this country we know as Canada will require more. The Canadian government has not established how much more, but a simple majority of 50% plus one isn't enough. It's enough for aboriginal people, but it isn't enough for the rest of Canada.

In the Nisga'a agreement, Canada and B.C. have exacted a legal promise from the Nisga'a that they had the right to enter into the agreement on behalf of all Nisga'a. Nisga'a have the right to practise their culture and use their language in a manner consistent with this agreement. This means that the oral histories, traditions, and laws of the Nisga'a are only valid if they do not conflict with the powers allowed for in this agreement.

The net impact of the certainty language in modern land claim agreements, and evidenced in the Nisga'a agreement, is a creation of a double standard with regard to title and interest in the land. Canada, the province, and third parties have their rights and interests recognized and protected. These rights are not defined or in any way limited by the agreement.

The indigenous group, on the other hand, has all of its rights reduced to the written word of the agreement. The aboriginal title to traditional territory ceases and is replaced with fee simple. Their right of self-determination ceases and is replaced with the right to self-government and self-administration under Canadian law. We, the Congress of Aboriginal Peoples, are not opposed to that if all Nisga'a have had an opportunity to have a say. Even if the majority of all Nisga'a agree, as the agreement says, that's fine, we can live with that.

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Another point for the committee is something the process has neglected to date. How do the Nisga'a who do not live in Nisga'a territory but who are Nisga'a by birthright participate in the process? What the Congress of Aboriginal Peoples is asking the committee is whether all efforts have been made to contact those Nisga'a to seek their opinion on this agreement. We have heard from the United Native Nations, our British Columbia affiliate, that this has not happened because the Nisga'a are not mandated by law to seek the opinion of those who do not live in the traditional territory. In the opinion of the Congress of Aboriginal Peoples, this is not acceptable. As a country that makes every effort for each and every eligible voter to participate in elections, such as armed forces and embassy personnel who are away from Canada, it is evident that this effort has not been extended to the Nisga'a who live off reserve or away from their traditional territory.

Another question we have for the committee is what course of appeal the eligible Nisga'a voters have. On page 3 of this presentation, it is indicated that Canada and B.C. have exacted a legal promise from the Nisga'a that they had the right to enter into the agreement on behalf of all Nisga'a citizens. The process now being discussed is not an inclusive process. This process has excluded Nisga'a according to CAP's British Columbia affiliate, the United Native Nations.

There was a Standing Committee of Aboriginal Affairs. There was a report released on July 19, 1997, which listed 112 recommendations. Mr. Ian Waddell was the chair. At that time, there was specific reference to women, children, and urban aboriginal people in three of those recommendations. To date, we have not seen anything in the Nisga'a agreement that is specifically mandated or tied to the youth, women, or those aboriginal persons who reside in urban areas. That leads the Congress of Aboriginal Peoples to these questions, and the entire treaty commission process in British Columbia has come under fire by our B.C. affiliate, the United Native Nations.

It was reported in a national newspaper that two-thirds of the first nations reserves in B.C. agree with the treaty process. In fact, only 46 of 198 first nations communities have agreed to this process. More than two-thirds do not participate in the treaty process. A question this committee should ask is why. What is it that forces those communities not to participate?

You will see from our report that there is no trust for the Canadian government in past agreements, whether it be in land claim agreements or in recognition of aboriginal title or treaty, simply because the process in this country is not to include aboriginal people, but rather to exclude some. Canada never excludes all outright, but it has no problem in excluding some. You limit your hit by limiting the amount of aboriginal people the country is responsible for. CAP is vehemently opposed to that. Of course, all of our constituents are vehemently opposed to that. We ask this committee to take a serious look at why this happens in the country.

While the Congress of Aboriginal Peoples is not against a treaty process, we would like to see assurances that our urban Nisga'a women and youth will be invited to participate and to be heard. To date, according to United Native Nations, participation has been exclusive rather than inclusive for the peoples who live away from the community.

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Our main point in this presentation is that the process needs to hear the voice of the urban and non-resident Nisga'a. If the committee can assure us of that, our congress will be satisfied.

The Chair: Thank you, all three of you, for your presentations.

We will start with our first round of five minutes, beginning with the Reform Party's Mr. Derrek Konrad.

Mr. Derrek Konrad (Prince Albert, Ref.): Thank you, Madam Chair.

I will address my remarks first to Mr. Diamond. However, before I do I would like to thank all of you for being here, as well as for the many interesting points.

In your presentation, you talked about dispute resolution and economic development. Before I get to my question, I would like to make a couple of comments about that.

If non-aboriginal communities are in an uneconomical zone, they disappear. Elevators, post offices, schools, rail lines, airports, government facilities, and programs are all withdrawn. I could take you to many sites in Saskatchewan, in my own riding, where towns have disappeared entirely. You can't find them, other than as historical places with markers that say here was a school, there was a town and village. Money is just not put into non-economic areas. One well-known Saskatchewan example is the town of Uranium City, which disappeared after it was out of uranium.

What your testimony has shown to this committee and to members of Parliament is that we should look carefully at some real concerns here. Twenty-five years after your treaty was signed, it has not achieved what you expected. It doesn't give the results you wanted and what was promised. Unemployment is unacceptably high. We have had members of your community here and we have met with members of your community in Quebec who have said that. After 25 years, you have the same problems and challenges you had at the time. That's a fundamental problem that we have with the Nisga'a Final Agreement. We're not sure that, in some future committee in 25 years, the residents of the Nisga'a Nation will not be here giving similar testimony on similar difficulties.

Would you please comment on these points?

The Chair: Go ahead, Dr. Diamond.

Mr. Billy Diamond: Thank you, Madam Chair.

Sir, it's a little difficult, but I can tell you that after 25 years of the James Bay and Northern Quebec Agreement, you have to keep in mind that our population has also tripled in 25 years. When we signed the James Bay and Northern Quebec Agreement, there were only about 5,500 Cree beneficiaries. There are now over 12,000 beneficiaries in the James Bay and Northern Quebec Agreement, and 68% of that population is under the age of 21. That is a very young population. Therefore, the employment opportunities are not as abundant as they were before.

The construction of the James Bay hydro-electric project has been completed, and the other opportunities are in the areas of housing and small development of that nature. In the last 25 years, we have been able to modernize our Cree communities, and most of our people have found employment in those areas. However, there is still a large population that still hunts, fishes, and traps as a way of life. That, in essence, is employment, but it never gets into the statistics. Therefore, there are opportunities.

I would like to make one thing clear. Once the James Bay and Northern Quebec agreement was signed, it became legislation. The same will happen to the Nisga'a agreement. Once the Nisga'a treaty comes into force and has the force of law, and you start implementing it, there will be a boom effect. Things will begin to happen. It will generate economy.

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For instance, a new economy was started in our region. Our community started new businesses. They started commercial enterprises. They started construction, airlines, housing, education, and health. There was a boom shortly after the treaty came into place.

The same will happen, I believe, with the Nisga'a treaty. A boom will take place until it stabilizes. But you can't have that until the Nisga'a treaty is put into place by legislation.

The Chair: Thank you very much.

[Translation]

Mr. Bachand, do you have any questions?

Mr. Claude Bachand (Saint-Jean, BQ): Of course, Madam Chair.

[English]

You'll need your translation device. And don't tell me to “speak white”. I was told that in British Columbia.

Must have been some rednecks.

Voices: Oh, oh!

A voice: Not in British Columbia.

Mr. Claude Bachand: Oh, there are a few.

[Translation]

Madam Chair, I would like to start by paying tribute to the three grand chiefs who are with us here today. These men have done extraordinary work that has marked the history of Quebec and Canada. I am referring obviously to Mr. Phil Fontaine, Grand Chief for the Assembly of First Nations; Mr. Palmater, who is one of my good friends and who made an excellent presentation on behalf of the Congress of Aboriginal People; and Mr. Billy Diamond, who is a grand chief from Quebec and who is one of the signatories of the James Bay and Northern Quebec Agreement. He's probably the only signatory who is still alive today, and he is looking well.

I have always admired the way Mr. Diamond defends issues that he takes on, including the James Bay Agreement, which was one of the first modern treaties in Quebec and Canada, as well as a constitutional issue in 1982. He is a negotiating mastermind and someone who is capable of accepting lots of compromises. I wanted to highlight his passage here today. I remember that we ate together not too long ago in Waskaganish. The meeting was very, very interesting.

I would like to ask two short questions, including one of Mr. Fontaine on the issue of extinguishment and certainty. A few years ago, Justice Hamilton presented a document, and I would like to hear your point of view on that, because I am not sure that I fully understood you, Mr. Fontaine. Would you like the federal and provincial governments and Aboriginals to undertake negotiations with a view to resolving once and for all the issue of signing treaties without demanding that rights be extinguished?

Mr. Palmater, it says on page 3 of your presentation:

[English]

Isn't it ironic, and it should be pointed out to the Committee at this time that for Nisga'a in their comprehensive land claim agreement, it seems that 50% of those who are entitled to vote and who do vote, is all that is needed to ratify this Agreement. But cessation of a province from this country we know as Canada will require more. It will not be a simple majority of 50% plus one.

[Translation]

It seems to be somewhat ironic. I am not sure that that formula would be advantageous for you or Mr. Dion. Could you explain that passage and clarify whether you want the 50% plus one formula to apply in the event of secession? I am not talking about 50% plus one of those who are entitled to vote, but 50% plus one of those who do vote.

[English]

The Chair: Chief Fontaine, go ahead.

Chief Phil Fontaine: Thank you. It's always a pleasure to engage in discussions with Mr. Bachand.

We too are forced to speak white once in a while, Monsieur Bachand—

Voices: Oh, oh!

Chief Phil Fontaine: —and more often than you, maybe. We have at least a longer history of that kind of experience.

• 1635

We are of course very much in favour of certainty. We made the argument in our presentation that the kinds of changes that are needed in first nations communities, particularly in terms of creating self-sufficiency and self-sufficient communities, require a degree of certainty for real investment to take place in first nations communities so that we can turn things around and begin to improve the lives of our people.

In terms of extinguishment, it was pointed out to us here that it is not every first nation community of approximately 196 communities in British Columbia that is involved in the treaty negotiations. There are various reasons for that. Even those that are engaged in the treaty process have made it very clear that they are completely dissatisfied with the current federal policy on extinguishment. It is something we have pressed government for over time. We see this as absolutely necessary to bring about satisfactory conclusions to the many outstanding claims, whether we are talking about specific or, in this case, comprehensive claims. What we advocate, of course, is a defined regime and a mechanism to deal with claims and more and more access to resources.

We shouldn't be placed in the unacceptable position that the extinguishment policy places first nations communities in. In the same way that Canada is not expected to give up its rights in the provinces, first nations should not be forced to give up their rights in order to resolve these outstanding issues. In our view, it is just a simple matter of fairness and justice.

The Chair: Thank you, Chief.

Your second question will have to be dealt with on your second round because you are out of time.

Mr. Robinson, please.

Mr. Svend J. Robinson (Burnaby—Douglas, NDP): Thank you. I too want to join in welcoming the witnesses before this committee.

I should probably say, having been around here for a while, that back before the committees I have had the honour of serving on—I was speaking earlier with Chief Diamond, and it was over two decades ago that we first met on these issues of aboriginal justice. I am delighted and honoured to welcome back our witnesses before this committee today.

First of all, I would like to seek clarification from Mr. Palmater from the Congress of Aboriginal Peoples on one aspect of his presentation that, with respect, I think is inaccurate. That is with respect to the issue of the Nisga'a who do not live on Nisga'a territory but who are in fact “Nisga'a by birthright”, to use the words of Mr. Palmater in his brief.

He said he has heard from the United Native Nations Society of British Columbia that those people who do not live on Nisga'a territory have been excluded from the process. He said that this was not acceptable, and if that were the case, I would agree it would not be acceptable.

I just want to ask Mr. Palmater, through the chair, if he is perhaps unaware of the fact that there are three urban locals of the Nisga'a people in the three major population centres in British Columbia outside Nisga'a lands, in Terrace, in Prince Rupert, and in my own community of Vancouver. In each case those urban locals provide full participation to Nisga'a people, including the right to vote.

I would just again respectfully suggest to Mr. Palmater that perhaps upon reflection he does not have the full picture from his colleagues in British Columbia with respect to this matter and that indeed the Nisga'a have made every possible attempt to fully involve those who live outside Nisga'a lands as well as those who live on Nisga'a lands. I wonder if Mr. Palmater might want to clarify his evidence on that point.

The Chair: Go ahead please, Mr. Palmater.

• 1640

Mr. Frank Palmater: When we asked our affiliate in British Columbia if this was the case, were Nisga'a people left off, Viola Thomas, the president of the United Native Nations, backed up by the vice-president, Scott Clark at our board table in Ottawa, responded that in some cases some Nisga'a were asked for their opinion. In some cases the process of going back or having the community invite them to participate was not respected.

There is no process outside those three locals that Mr. Robinson mentioned that allow Nisga'a people to participate.

Mr. Svend Robinson: Now the evidence is changing. We are told there is no process outside those three locals. First, Mr. Palmater tells us there is no process outside Nisga'a lands. Now he says there is no process outside the three locals. That is a fairly significant change in evidence.

The fact of the matter is that I personally, Mr. Palmater, witnessed voting in Vancouver by Nisga'a people. This is direct participation. The Nisga'a people made every possible effort to enrol as many people as possible throughout British Columbia, and those were the three centres in which they were able to vote.

That is the fact. I would again suggest that perhaps you might want to clarify this with your representatives. I know your representatives from British Columbia. I have known them well and worked with them on a number of issues and certainly share many of your concerns with respect to the appalling economic conditions of aboriginal peoples in urban communities. I think it is important when we look at the Nisga'a treaty to make sure the evidence is accurate and clear.

I want to ask a question of Chief Fontaine with respect to some of the misrepresentations he has talked about. He said that certain political parties have used inappropriate and misrepresentative terms: the B.C. Liberal Party and the federal Reform Party are two for starters. One of the most offensive is the characterization of the Nisga'a treaty as being a race-based form of government. In fact, some Reformers have gone so far as to suggest that this is akin to apartheid. I know Chief Fontaine was very much involved in the fight against apartheid. That is one of the most outrageous and scurrilous accusations that could be made.

I wonder if Chief Fontaine could just respond to these suggestions, which are out there now in the public domain, from Reform Party members and B.C. Liberal Party members.

The Chair: Can we have a short response, Chief?

If you want to follow up again, it will have to be on another round.

Chief Phil Fontaine: First of all, it's clear to all of us around the table here that the Constitution speaks very clearly about the rights of all aboriginal peoples, including first nations peoples. Those rights are not expressed as belonging to a particular race but are held by various first nations communities and indeed nations of first nations peoples across the country. That's the simple answer.

On different occasions we have made our concerns known, in particular to the Reform Party, that their position in pressing this issue is doing a disservice to all Canadians, but particularly to first nations peoples who are determined to secure their rightful place. All this does is fan the flames of uncertainty and indeed, in many cases, hatred towards first nations peoples. It is completely counterproductive. It must be opposed at every turn and at every opportunity.

We have respectfully requested our friends, including Mr. Scott, to tone down their rhetoric. We requested the same six months ago. Instead we saw an escalation of that kind of talk and it has concerned our people greatly. I think it is important that we take issue with that.

The Chair: Mr. Bonin, you have five minutes, please.

• 1645

[Translation]

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

[English]

chiefs, and particularly Chief Fontaine.

I have been following your leadership term with great interest, and I want to commend you. I proudly share this table with you. I see your people moving forward since you have taken office and I want to congratulate you.

I also bring greetings from a friend of mine, Dr. Jean Watters, who is the president of Laurentian University, where he is in the process of creating a “triversity”, an anglophone, a francophone, and an aboriginal university that will be completely autonomous. It is a great concept.

I want to develop a theme, the idea of a referendum, that I developed during our trip to British Columbia, although I suppose this will not be an issue when we do clause-by-clause, because the House dealt with that yesterday, and there will not be a referendum.

There are close to another 50 agreements coming forward. Certainly, we don't want to wait 50 years to clear up those 50 treaties, and I don't think people want three referenda a year. I say it's not an issue of referenda; I say it's an issue of inherent and minority rights. I have asked most of the opponents of this agreement to explain to me how they plan to protect inherent and minority rights in a referendum by the majority affecting the rights of a minority.

One opponent came to mind. My colleague, Mr. Robinson, made reference to the Liberal Party of British Columbia. You can wear red pyjamas, but if you go to bed with a Reformer you're not a Liberal. Let's make that clear.

We need to clear this up. If I'm correct, the issue is inherent rights and minority rights. None of them could explain to me, first of all, if they believe in these rights, how they plan to protect these rights by a majority vote affecting the rights of minorities, without their consent. It is important that you give your impressions on this because there are other treaties coming.

Chief Phil Fontaine: There is a point I ought to make in response to the previous question regarding race-based governments. You'll note that I made reference to section 35 of the Constitution that speaks to existing aboriginal and treaty rights as belonging to first nations peoples. I made the point that we are talking here about nations of the first peoples.

It must be made very clear that what we're talking about here are political rights that belong to the first peoples. They are not races. We are talking about nations.

In our discussions with people who say this process is essentially anti-democratic, we have suggested to them that when we speak about democracies and democratic principles and accountability, as this has been presented to us, democracies are not just about the majority and the powerful. Democracies are also about minorities. I would like to emphasize that here. When we talk about democracies protecting the rights of their citizens, that definitely includes, very clearly, minorities and peoples such as the first peoples.

Mr. Raymond Bonin: I hear that you agree with me that a referendum by a vote of the majority affecting the rights of the minority is the worst way we could go to help the negotiations.

Chief Phil Fontaine: It's completely and absolutely anti-democratic.

Mr. Raymond Bonin: That's what I want to hear. We have it cleared up. Thank you.

• 1650

The Chair: Thank you very much.

We'll start our second round of questioning with Mr. Scott from Reform.

Mr. Mike Scott (Skeena, Ref.): Thank you, Mr. Fontaine, for your presentation, and thank you to the other presenters here today.

Madam Chair, I want to follow up on Mr. Bonin's line of thought in a minute. But I want to say, first of all, Mr. Fontaine, that in your presentation on page 3 you say that the negotiations that took place were “transparent, civil and comprehensive”. I have to presume that you are unaware that the negotiations actually were not transparent. They took place in secret because there was a secrecy agreement signed in 1991 between the three parties, an agreement that excluded the people of British Columbia, the non-Nisga'a people, including, I might add, the Gitanyow and the Gitxsan people, the Tahltan, and other tribes, neighbours to the Nisga'a.

Having said that, I want to follow up on the point that Mr. Bonin was making and that you were responding to, about the majority voting in favour or voting with respect to the rights of the minority. In fact, isn't that exactly what happened in the Nisga'a referendum, when 60% of the Nisga'a people... And there are some Nisga'a people who question whether that is in fact an accurate number in terms of the support level. But when 60% vote in favour of the treaty, 40% do not. Are their rights not being compromised? When some of those people in the minority are expressing the concern that their charter rights may be impacted or may be able to be overridden by this agreement, are their individual rights in fact not important?

We heard testimony yesterday, by the way, from legal and constitutional experts who agreed that even though they were in support of the treaty, section 25 of our Constitution, coupled with this agreement, could definitely infringe on the charter rights of individual Nisga'a at times.

Are those rights also not minority rights and are they also not just as important? How would you respond to those concerns, given your response to Mr. Bonin on his last question?

The Chair: Go ahead, please.

Chief Phil Fontaine: One part of the question that I think is important in the debate around this agreement is the issue of transparency. Transparency suggests that most of those who are concerned by and interested in any given process, including this particular process that led to this treaty...this particular agreement has been one of the most heavily scrutinized agreements ever, in the history of the country.

I think all of you around the table are aware of all of the many oral submissions that were made, of the high number. We are also well aware of all of the written submissions that were presented, which were representative of the various views, the diverse views, regarding the treaty.

We are also well aware that at each stage of the negotiations there is a requirement that each of the representative bodies engaged in the negotiations are required to go back to their assemblies, to the provincial government, to the B.C. legislature, and the Nisga'a to their people and the federal crown to the House of Commons. So there is no doubt in my mind that this particular agreement, this treaty and the process, has been as transparent as any public process and as the ensuing agreement needs to be. The interests of all of those affected by the agreement have been well represented, by the provincial government, the federal crown, and the Nisga'a elected leadership.

• 1655

Of course, when the occasion presents itself, when we want to speak about democracy and the fact that we have a democratic government...this government is based on democratic principles. The people who are seated around the table, and in fact the members of Parliament in the House of Commons, are not elected by 100% of their people, right? There are varying percentages. We are well aware that in the United States, for example, the last election had a 54% turnout. The President, who represents apparently the most powerful nation in the world, was elected by 34% of the entire electorate in the country.

In this case, I understand that in your constituency, Mr. Scott, there was a 61% turnout. I understand you were elected by 10% of the electorate, and you purport to speak for all peoples in your constituency.

Mr. Mike Scott: Forty-five percent, Phil.

The Chair: Thank you very much.

In the second round, we go to Mr. Iftody, please.

Mr. David Iftody (Provencher, Lib.): Thank you, Madam Chair.

Thank you very much, gentlemen, for appearing—Mr. Palmater, Chief Diamond, and Chief Fontaine. Two of you I know very well, and it's a pleasure to have you appear before the committee.

Mr. Palmater, I am meeting you for the first time. Thank you for your representations.

Madam Chair, I want to clear up a couple of things. Firstly, for the notification of this committee, we will be tabling a ratification report, which outlines the detailed process for the ratification of the vote on the Nisga'a treaty. Additionally, there have been some clarifications provided by the member for Burnaby, which are also on the record. We will provide further clarifications for you on that. I understand that Nisga'a living off-reserve, both in the U.S. and Europe, had an opportunity to vote and were notified. I am led to believe, Madam Chair, that the process was extensive and broadly based. With that, I'd like to go into my questioning.

I want to focus on a notion that was raised here and elsewhere about the Nisga'a agreement perhaps not protecting the rights of women. I want to direct the first part of this to Chief Diamond. I think it's quite interesting, Madam Chair, to have him here today, because he was at the table at the amending conference. In fact, in 1983, if I recall, he was the senior negotiator for the Assembly of First Nations at the time. We have Chief Diamond in subsection 35(4) of the Constitution:

Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.

We've heard a lot of discussion about the possibility that the charter won't apply to the Nisga'a agreement or that somehow those protections of 35(1), which were negotiated with the Government of Canada at the time in 1983, would not apply.

Could you just give us some historical background about what happened during those negotiations and why specifically there were those protections put in for women? In this case, of course, we are interested in Nisga'a women and their protections in this treaty.

The Chair: Dr. Diamond.

Mr. Billy Diamond: When the constitutional amendments were negotiated back then, the native women of Canada wanted very clear definitions. Probably the only land claim agreement was the James Bay and Northern Quebec Agreement. Again, they wanted certainty. We have talked about certainty here. The native women wanted certainty that their rights were protected. That particular section came into being after intensive discussions internally with the Assembly of First Nations and with the other aboriginal organizations at that time. Before that, there were discussions at the ministerial level.

• 1700

It's really important to comprehend that when you do negotiate land claims and you reach agreements, those rights that the aboriginal people have been discussing are rights they have chosen to define in agreements, so they become agreement rights. But aboriginal leaders and aboriginal communities want more than that. They want those rights protected by provincial legislation, as in the case of the James Bay and Northern Quebec Agreement, where there are probably about 16 to 18 different pieces of legislation putting into force various sections of that agreement. There is provincial legislation so that no signatory, on his own, can go out and amend certain things.

So you have agreement rights, and you have rights put into provincial legislation, so you have legislative rights. Now you are going to have the federal legislation. In this case, the Nisga'a treaty is going through federal legislation. After the federal legislation is completed, it's entrenched in the Constitution. Not only are the rights in the agreement entrenched in the Constitution, but the special rights that women enjoy through section 35 are also entrenched in the Constitution. That's how we developed it and devised it for certainty and for clear protection of those aboriginal rights, so that no one single party can come and make those amendments.

[Translation]

The Chair: Mr. Fournier, please.

Mr. Ghislain Fournier (Manicouagan, BQ): Thank you, Madam Chair. I must start by apologizing for being late. My colleague and I have to attend several meetings today, and we are spelling each other off. I am the member for Manicouagan, a large riding located on the Quebec North Shore that includes eight Aboriginal communities with which we get along very well. We hope to continue doing so.

Mr. Fontaine, in the last two lines on page 3 and at the top of the paragraph on page 4 of your document, you seem to be saying that the majority that would be acceptable for the Nisga'a, e.i. a simple majority of 50% plus one, would not be enough for the secession of a province wanting to achieve sovereignty.

I would like you to explain exactly what you mean, as I do not understand your statement.

[English]

Chief Phil Fontaine: Thank you very much for the question.

The question is based on a position that wasn't reflected in my document, but I'll take the opportunity to speak to one of the other issues that was raised here. That has to do with the requirement or need to protect the rights of women and others.

The problem has been with us for as long as we've co-existed, whether it's a matter between the federal crown and first nations people or between provincial governments and first nations people. It has to do with a view that is really paternalistic, and it underlines one of the major impediments in defining a more equitable relationship, if I can put it that way, a more honourable relationship, a more respectful relationship, between governments and our governments. It is the assumption that only white governments can protect the rights of people within our community.

I think it's clear that the most effective protection we can provide our people is to have our governments deliver good government to all our citizens. One of the obvious requirements is to ensure that there is capability, and indeed capacity, within our communities to be able to deliver what is required according to the according to the expectations of our citizens, in the same way that your government and the federal crown and provincial governments are expected to deliver to either of the two constituent groups. It's a normal expectation, one that isn't necessarily unique to the requirements of first nation governments.

• 1705

[Translation]

The Chair: Mr. St-Julien.

Mr. Guy St-Julien (Abitibi—Baie-James—Nunavik, Lib.): Thank you, Madam Chair. My question...

[English]

Mr. David Iftody: Madam Chair, a point of order, please, before my colleague begins to make his presentation. I would like to table for the committee, in both official languages, a copy of the 500 or so consultations that have been held throughout British Columbia on the Nisga'a treaty. I will be submitting this to the clerk to be distributed to all the members of this committee.

The Chair: That's fine. Go ahead. It's not technically a point of order, but I know it was raised the other day. We can table those things.

Please go ahead, Mr. St-Julien. I will recommence your time so it will be your full time.

[Translation]

Mr. Guy St-Julien: My question is for Mr. Billy Diamond. When I think about the James Bay Agreement, I always think about November 11, 1975. It is November now, and it has been almost 25 years. On November 11, everyone thinks about veterans; I often think about the James Bay Cree who worked very hard during the negotiations that aimed to improve their lot.

We are examining issues such as the Nisga'a Agreement and Nunavut. What worries me are the repercussions of the James Bay Agreement. The James Bay Agreement is often referred to here in our discussions in Ottawa, and I allude to it often in our discussions on air transportation. The federal government has a fiduciary responsibility as regards the issue of airline companies. It made a commitment by signing the Agreement and it must now honour the Agreement's provisions.

What worries me the most is the issue of the coastal islands. We are preparing to resolve the issue surrounding the islands for Nunavut and the Nisga'a, but we do seem to be able to resolve the issue of the coastal islands where the James Bay Cree have been hunting and fishing for hundreds of years.

I would like to hear your opinion, Mr. Diamond, on these islands. Where is the current holdup coming from?

[English]

Mr. Billy Diamond: It's interesting to note that on November 11, 1974, the then Minister of Indian Affairs promised that he would settle the islands of James Bay through a separate letter of undertaking. It has been 26 years now that we have been waiting for the settlement of those islands. It has not taken place. But that does not prevent the Cree from hunting, fishing, and trapping on the islands of James Bay.

In fact, it reinforces the position with respect to what we call aboriginal title. Even though there is a Nisga'a treaty now and a Nunavut land settlement, the James Bay and Northern Quebec Agreement is still in a process of building and implementing the various sections.

What we should be talking about is modernization of the James Bay and Northern Quebec Agreement. There are many parts of the agreement that need to be updated and modernized. My sons are full-grown men today. They're in their twenties. Their needs and aspirations are completely different from what we negotiated. You're going to have to be very careful about how long you take to implement the Nisga'a treaty. It has to be done very soon and very quickly. Time is very important here.

I know there is opposition to the Nisga'a treaty. There was opposition to the James Bay treaty as well. The Parti Québécois opposed the signing of the James Bay and Northern Quebec Agreement. The Parti Québécois are the government in power today in the province of Quebec, and they are implementing the James Bay and Northern Quebec Agreement. My member of Parliament from Abitibi, Mr. St-Julien, was a member of another party back then, and he opposed the James Bay and Northern Quebec Agreement. Today he is implementing the agreement.

• 1710

The Chair: You have another minute.

[Translation]

Mr. Guy St-Julien: Madam Chair, we are here to help people from our riding, and I appreciate the leadership of Chief Billy Diamond, whom we should call Dr. Diamond.

Mr. Diamond, when will we be able to update the James Bay Agreement?

[English]

The Chair: Go ahead, Mr. Diamond.

Mr. Billy Diamond: It's a long process. Negotiations with aboriginal people are nation-building. Aboriginal people want nation-to-nation discussions, and I hope that's what the governments want as well. So the attitudes and policies of government have to change.

If we are talking about modernization, there also have to be modernization policies in the Government of Canada. You start directly from the Indian Act. There has to be modernization or a complete overhaul of the Indian Act.

Modernization in negotiations means there have to be negotiations in trust and in good faith. If there is no trust and good faith, the discussions will not go anywhere. It begins there. Without trust and good faith, there is no sense in discussing modernization of existing treaties or modernization of the James Bay and Northern Quebec Agreement. It begins with good faith and trust. Governments and first nations must have that on the table before they begin.

The Chair: Thank you.

Mr. Scott, please. We are into our fourth round now.

Mr. Mike Scott: I have just a brief comment, and then I'll go on to my question.

In response to Mr. Fontaine's last address to me, I would just like to correct the record. About 70% of the people in the last election in my riding voted, and I received just under 45% of the vote, Mr. Fontaine.

Moving on and talking about the issue of minorities, I want to make it very clear that the Gitxsan and Gitanyow people testified in front of this committee in Smithers on Tuesday last week, saying their rights had been completely disregarded in this process. They were very upset with the process. The fact that 84% of their land is included in the Nisga'a agreement is so important to them, they advised this committee that to pass the bill now, without correcting this overlap situation, would be considered an act of extreme aggression, and they would react accordingly. They indicated that a part of that action might be even violent confrontation. So I lay that before you.

I also lay before you that the people of Kincolith, one of the four Nisga'a villages, advise that they have been left out of the process, and the land they consider to be part of their ancestral territory is not included in the agreement. They actually passed a band council resolution—because they are a band within the meaning of the Indian Act and they consider themselves a band—requiring the Nisga'a Tribal Council not to negotiate on their behalf. They want to sever themselves from the Nisga'a Tribal Council.

They advise that their wishes, or expressed desires, have been ignored. They also allege that because this band council resolution was ignored, to include them in this treaty is an act of fraud.

These are not my allegations or those of the Reform Party. These are allegations that aboriginal people, who live in my riding and who I represent, are making to me. I would ask how you would respond to those.

The Chair: Go ahead, Chief Fontaine.

• 1715

Chief Phil Fontaine: First of all, I note the correction you made about the percentage who actually cast their votes in your favour. It's still less than 50%—45%. Do you still speak for all of the constituents in your riding?

We're talking about a matter that is the responsibility of first nations in that area. The resolution of the problem you talked about rests with the first nations governments in that area. It's a matter that has to be resolved by those governments.

It's clearly a reflection of the fact that this particular matter—and I'm not talking specifically and solely about the territory in question, I'm talking about the entire province of British Columbia—of this outstanding claim has been around for as long as it has. It's not surprising that the movement of people and communities, and in some situations forced relocation of entire communities, would result in issues of overlap. This is the case now and it is a matter that has to be resolved by the Gitxsan, Gitanyow, and Nisga'a.

Mr. Mike Scott: Mr. Fontaine, I appreciate where you're coming from, but the Gitxsan and Gitanyow representatives who appeared before this committee were very specific. They don't disagree that the issue should be resolved between themselves and the Nisga'a, but they have demanded that this committee not pass legislation giving effect to the Nisga'a agreement until and unless that issue is addressed to their satisfaction. They will see it as the Government of Canada taking sides with one, being the Nisga'a, over the other, being the Gitxsan or the Gitanyow, if the House of Commons ratifies this legislation in advance of that overlap issue being resolved.

Would you not agree with their position that it is premature to ratify this agreement until that situation is addressed?

Chief Phil Fontaine: I will repeat what I said in response to the first question, that what is at issue here is essentially an internal matter. It is a matter that has to be resolved by those governments and that territory. Those governments include representatives of the Gitanyow, representatives of the Gitksan, and representatives of the Nisga'a. That's where that matter must rest.

The Chair: Thank you very much. We will go now for five minutes to Mr. Finlay.

Mr. John Finlay (Oxford, Lib.): Thank you, Madam Chair, and welcome. It's been a most interesting afternoon and presentation.

If I might simply move back to the point Mr. Scott was asking about, not far from here I asked both the Gitxsan chiefs and the Gitanyow chiefs who appeared before this committee whether they wanted us to hold up the Nisga'a agreement because of this disputed area. The answer in both cases was “absolutely not”. I don't really think they've changed their minds, Chief.

I must say that on page 3 you have sorted out my thinking about this. I think this is the clearest expression of what we are trying to do with the Nisga'a agreement.

You say:

Section 35 of the Constitution Act envisioned exactly the process which brings us here today. It grants Constitutional protection to both existing aboriginal and treaty rights and to those now negotiated in modern land claims settlements and treaties. It is the mechanism through which the other governments of Canada, at the federal and provincial levels, can and will recognize the inherent right of self-government and the inherent right or self-determination of first nations peoples in Canada. Those rights are not granted by section 35 of the Canadian Constitution. They existed long before European settlement. But they are recognized and protected within the fabric of Canadian law by virtue of section 35.

• 1720

I thank you for putting it so succinctly and so well.

As well, near your conclusion you say:

The notion of “extinguishment” from rights, as a prerequisite to bargaining, must be relegated to the historical trash bin.

I think it was retired Chief Justice Hamilton of the Supreme Court of Manitoba who did the very thoughtful report I read some years back on that matter.

It seems to me, Chief, that what we have followed in the Nisga'a agreement is precisely one of his suggestions, that we forget about the fancy words and the extinguishment and accept the fact that there are rights to be dealt with here. If we write an agreement that is specific enough, we will have solved the problem.

You also say:

Other processes must be developed which meet the needs of the other governments of Canada, and First Nation governments, which choose to engage in non-treaty processes as mechanisms for the determination of the continuing relationship between First Nations and its neighbours.

Would you say the Nisga'a treaty has been, or could be, one of those methods?

Chief Phil Fontaine: It is clearly the mechanism and the process that has been accepted as the appropriate one by the Nisga'a. There are other situations where matters related to land and access to resources, for example, need to be clarified and satisfactory arrangements effected to secure those rights for first nations people.

We are all aware of the panic that sets in whenever there is any suggestion that first nations people...and whether that suggestion might be given expression through a Supreme Court decision, it clearly sets off alarm bells all over the place.

The immediate response is, well, first nations will take over the entire lobster industry, or they will take over all of the timber resources in the country, or they will displace and dispossess first nations people. But that's never been our intent. We've always wanted to ensure that the rights of all peoples are protected. Those rights, whether they belong to people other than first nations people, must be protected and ensured through negotiated arrangements.

We have suggested that the treaty process, as we see it in British Columbia, is one process. There are others within British Columbia who see the need to establish other processes that will satisfy their needs. There are other processes.

Right now across the country there are approximately 90 tables on self-government negotiations. Those aren't necessarily treaty negotiations. For example, there is the comprehensive agreement we signed and concluded in Manitoba in 1994 with this government, the framework agreement initiative.

If we put it to the test, we are quite certain it would be considered to be like a treaty, but the first nations leadership did not want the agreement to be a treaty. They wanted an intergovernmental, political relationship, and there are situations where that is the appropriate process.

The Chair: Thank you very much.

[Translation]

Do you have any further questions?

[English]

Mr. John Finlay: I have another one.

The Chair: No, you're out of time, Mr. Finlay, I'm sorry.

We will commence with Mr. Fournier and then the last five-minute round will go to Mr. O'Reilly.

• 1725

[Translation]

Mr. Ghislain Fournier: Thank you, Madam Chair. My first question was to Mr. Fontaine. I did not want to be too insistent, not wanting to be unpleasant or impolite. I saw that Mr. Fontaine used up a lot of energy answering me. I was told that I should have asked that question of Mr. Palmater, because the comment came from his brief. So if I may, I'm going to repeat my question.

On the last two lines of page 3, you state that the Nisga'a can win a referendum with a simple majority of 50% plus one. In the first paragraph on page 4, you seem to be saying that it would not be normal for this rule to apply to a province wanting to leave Canada or secede. Could you clarify your thoughts, Mr. Palmater, so that I can fully understand your point of view?

[English]

The Chair: Go ahead, please, Mr. Palmater.

Mr. Frank Palmater: Thank you very much, Madam Chairman, and the person who asked the question.

The question was asked quite some time ago, but unfortunately the chair said the time was up, so I would have to get the question from someone else.

The Chair: That's why we have second, third, and fourth rounds. Your time is going right now. Go ahead.

Mr. Frank Palmater: I'm glad I got an opportunity to respond.

What we meant by the question was that, for members of the committee, it seems, when dealing with aboriginal issues, 50% plus one, a simple majority, is sufficient, but when dealing with issues that are not predominantly aboriginal issues, this country prefers a much larger percentage.

With regard to some corporate law, we know that the courts have said that in order to change a section of your bylaws, your rules, and your regulations, sometimes 75% plus one is required. The question for members of the committee from our group was whether 50% plus one was a reasonable expectation for the Nisga'a people.

If that's okay with the committee, it's okay with us, but Mr. Bachand asked another question, and that was about secession. He asked if the 50% plus one is an indication to Mr. Dion, I think, that 50% plus one is all Quebec needs.

In my very humble opinion as a layperson, not as a lawyer, Quebec has no right to secede from the country it so freely joined. If it ever does, it leaves with what it came in with, nothing more. Quebec has no right to secede from this country.

It would be like a person in a large family saying, well, I don't agree with what Mom and Dad said, so I'm going to go somewhere else—and by the way, I'm taking the car and the barn with me.

Sorry, but that's not something our organization would ever, ever recognize. We think Canada could easily solve the secession problem if it would simply recognize the existence of the title that aboriginal people had prior to European contact.

Madam Chair, you would circumvent all the other processes in place, the provincial and/or federal governments and their rules and regulations, by recognizing that the aboriginal people have a say. If Quebec ever came to that point of secession, I believe the Government of Canada would turn to the aboriginal people and ask, listen, what's wrong with this? Can they do this? Is that necessary?

My point in the report is that it seems that for the Nisga'a people, 50% plus one is okay for this agreement, but for Canada, it seems to be a double standard. You require more than 50% plus one. If 50% is okay for aboriginal people, then why shouldn't it be okay for the rest of Canada? That is my question. I am not saying it should be.

[Translation]

The Chair: You have 10 seconds left.

Mr. Ghislain Fournier: I would prefer not to comment on the answer at this point.

• 1730

Although I accept some parts of your answer, you understand that I could not agree with you entirely. When I get a copy of the proceedings for this meeting, I will examine your answer with my colleagues.

The Chair: Thank you, sir.

[English]

Go ahead, Mr. O'Reilly.

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

Thank you very much for attending. I went on a tour of British Columbia and talked to Gitxsan and Gitanyow, and they do support the treaty process. I'm sure the problems they have with the Nisga'a will be worked out in similar fashion with some negotiation.

When I was in British Columbia, I became rather infamous because... I spoke on this on Monday night, and I would invite the opposition to read Monday's Hansard so that they can follow what we went through in British Columbia. It was a process that was less than friendly due to the whipped-up enthusiasm of some Reform Party members—not members of Parliament, although they went to every riding and got them all whipped up and had them come in. Even Randy White was in Vancouver with a blow horn, telling them to turn over the tables if they had to. I don't know why he needed a blow horn, but anyway...

I found out—and this is from the B.C. Labour Council—that sixty community newspapers are owned by one person. His name is Black, but not Conrad. Conrad owns the other one. The fact is that they are only allowed to print negative items on aboriginal treaty processes. When I said that, I was challenged by some of the press. In fact, a few of them called me everything but my proper name, and they threatened me, by the way.

I challenged them. I asked them to send me the articles and to prove me wrong. I said I would come out to Vancouver and eat the newspaper right on the main street and they could film it. Now they have gone back and printed an editorial saying they have jammed my fax machine. In fact, I have six articles so far, and it has been quite a few days. My fax and e-mail and web site are not jammed, except with hate mail, which is quite interesting. But there is a light shining through. I'm getting some good mail from people who have said I've finally shown that there is some truth there.

My two questions are very simple. I've added one. I only had one all the way through British Columbia, and that was to ask what we could do to improve the treaty negotiation process. And now, how much harm has been done by this exclusion by the press in terms of good news articles—which are obviously very hard to find in B.C.—on the process of treaty negotiations?

So my two questions are, first, what harm has been done, and second, what can we do to improve the treaty negotiations?

Perhaps both chiefs could handle that.

The Chair: Dr. Diamond.

Mr. Billy Diamond: In response to the first one on what we can do to improve the process, the first thing comes in approving the legislation. But the members of the committee can also take a look at the internal process of how the government will implement the treaty. In the lessons learned from the James Bay and Northern Quebec Agreement, there was no structure set up to implement the James Bay and Northern Quebec Agreement or other land claims. The bureaucracy as it exists now is not set up to implement treaties and the modern-day land claims.

It is very important that, as members of Parliament, you be given an opportunity to perhaps ask that you have a review of the Nisga'a treaty within five years. The findings of that review should be presented to this committee to see whether the obligations have been implemented or whether the obligations have been fulfilled. There must be accountability. As members of the committee, you can recommend accountability on the part of all parties. I think that's very important.

1735

On the other thing, as far as the present media are concerned, you are not the only politicians who are not liked by the media. Indian politicians are also not liked by the media. So you and I share the same experiences there.

But negotiations have to be done in an atmosphere of good faith. You cannot negotiate through the media. It has to be done behind closed doors. That's where the issues are discussed and that's where the issues are settled. It has to be behind closed doors, or else there will never be an end to the process. It will take on a life of its own and continue on and on. We'll always be at the table, and some of us will be talking in good faith while others will be talking with a forked tongue. Unfortunately, that's what happens most of the time.

If we are to succeed, it has to be done behind closed doors and not through the media or newspapers. We're going to get criticized anyway. Even if you do some good, people will still try to look for the bad in it. They'll always be negative and will never see the positive.

There are many positive things in the James Bay and Northern Quebec Agreement. I'll tell you one of the greatest things that I can point out as far as it directly impacting my family is concerned. I went to school at an Indian residential school. I was sent away from home. My children were able to receive education at home in their own language, the Cree language, while at the same time learning the other two languages. Two of my youngest children speak three languages. That's how directly we have been impacted, and that's a success story. But you don't hear success stories like that. That's the way the media and newspapers react.

The Chair: Chief Fontaine, would you like the floor?

Chief Phil Fontaine: Yes, I would, Madam Chair.

One of the issues that I wish to speak about in response to one of the questions raised by Mr. O'Reilly has to do with all the negative imagery perpetuated in the media. Because of the very serious concerns that we have about the effects and consequences of that kind of negative reporting of our issues, we have gone out to meet with various editorial boards of various major dailies in the country.

If there is one constant in these discussions, it has to do with this particular approach that's being taken by too many, and that is to cast everything that occurs in our community in a negative light. We're concerned about this approach. It's not that we oppose honest debate and free and open discussions about issues of fundamental importance to all peoples, including our people and our issues. We are concerned because of the burden it imposes particularly on the young people. To have young people constantly bombarded with all kinds of negative imagery is far too much.

There ought to be a very serious attempt to provide balanced reporting. That must include speaking about the issue of all the tremendous achievements realized by first nations people. For example, there is education. I like to refer to this because it illustrates the success that we have been able to achieve. In 1969, we had approximately 80 people in post-secondary institutions. Today there are 27,000. That represents a significant cadre of professionals, expertise, and talent within our community, and they must be given every opportunity to realize the full potential that's represented by this number.

In terms of economic development, there are 20,000 small businesses that are owned and managed by first nations people right across the country. That represents a real contribution to the nation's economy, because there is no argument that it's small business that creates most of the job opportunities in the country. That must be given exposure. If we can give that kind of attention to the successes, it tells us that in spite of all the major impediments we face, we are able to succeed. What it does, of course, is inspire our people. It gives hope to young people. That's what we need to give our young people, and that's hope for a better future.

• 1740

In terms of the improvements that are required, what we would suggest is to go back to one of the points I made earlier: take a very serious look at the current policy on extinguishment and set that aside, because to do that would give us a level playing field. Then, whatever process is structured to give effect to agreements such as the Nisga'a treaty, that process must be properly resourced so that we can bring to the process the required expertise and skills and talents needed to effect the kinds of changes that are proposed in such agreements.

Thank you.

The Chair: Thank you very much.

On behalf of all the members around the table, it remains for me to thank all of you for coming today. As usual, we've had differences of opinion, but I think those differences are valuable for us in our deliberations.

I remind the committee that we will be adjourned until 9.30 a.m. tomorrow. Thank you very much.