AAND Committee Meeting

STANDING COMMITTEE ON ABORIGINAL AFFAIRS AND NORTHERN DEVELOPMENT

COMITÉ PERMANENT DES AFFAIRES AUTOCHTONES ET DU DÉVELOPPEMENT DU GRAND NORD

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, November 16, 1999

• 0947

[English]

The Chair (Mrs. Sue Barnes (London West, Lib.)): Good morning, and thank you for this wonderful centre. We're very glad to see so many people from the public join us today.

Before we start our meeting, to those who are not presenting but have a brief that they have given up for translation and later distribution, once the meeting has started, if you have something, one of our clerks out in the foyer would be happy to take any briefs you wish to table. That way they can get to the committee's attention.

My name is Sue Barnes. I'm the chair of the aboriginal affairs and northern development committee. We're very happy to be here with you today.

Before we start introducing our witnesses of the morning, I would like to have the committee members introduce themselves to you.

Mr. Keddy, would you start for us, please?

Mr. Gerald Keddy (South Shore, PC): I'm Gerald Keddy, the member of Parliament for South Shore, Nova Scotia.

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

[Translation]

Mr. Daniel Turp (Beauharnois—Salaberry, BQ): My name is Daniel Turp and I'm the Bloc Québécois MP for Beauharnois—Salaberry.

[English]

I'm also the spokesperson for intergovernmental affairs for my party.

[Translation]

Mr. Ghislain Fournier (Manicouagan, BQ): I'm Ghislain Fournier and I'm also a Bloc Québécois MP. I represent the riding of Manicouagan in northern Quebec.

Mr. Claude Bachand (Saint-Jean, BQ): I'm Claude Bachand, the Member for Saint-Jean and aboriginal affairs critic. Saint-Jean is located 25 miles south of Montreal.

I suggest to those who can hear me but who don't understand what I'm saying because they don't speak French that they pick up a set of earphones at the back. My colleagues and I will be speaking French most of the time.

[English]

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

Mr. Mike Scott (Skeena, Ref.): I'm Mike Scott, member of Parliament for Skeena. Smithers is part of Skeena.

Mr. David Iftody (Provencher, Lib.): I'm David Iftody, member of Parliament for Provencher in Manitoba. I'm also the parliamentary secretary to the Minister of Indian Affairs and Northern Development.

Mrs. Nancy Karetak-Lindell (Nunavut, Lib.): [Member speaks in her native language]

My name is Nancy Karetak-Lindell. I'm the member of Parliament for Nunavut, which is the new territory in the eastern Arctic.

Mr. John Finlay (Oxford, Lib.): I'm John Finlay, the member of Parliament for Oxford in southern Ontario. I'm the vice-chair of the aboriginal affairs and northern development committee.

Mr. Raymond Bonin (Nickel Belt, Lib.): I am Raymond Bonin, the member for Nickel Belt in northern Ontario.

Mr. John O'Reilly (Haliburton—Victoria—Brock, Lib.): I'm John O'Reilly, member of Parliament for Haliburton—Victoria—Brock in central Ontario.

The Chair: Up here with me are our two researchers with the committee from the parliamentary library and our two clerks. Then we have some assistants, as I noted before.

The order of the day is Bill C-9, an act to give effect to the Nisga'a Final Agreement. As we have started 15 minutes later because of taking the bus as opposed to the plane here, we will go 15 minutes later and make sure everybody has the full time we had intended.

• 0950

We have with us as witnesses today chiefs from the Gitxsan Nation. There is one change to the presentation. Chief Martha Ridsdale is also speaking this morning on behalf of the Gitxsan, and then Chief Earl Muldon and Chief Jim Angus. We also have at the table Chief Art Wilson and Chief Rosaline Starr.

As I understand, we are going to have presentations from three, but then with the committee being able to ask any of the parties as they go along. We also have simultaneous translation for anybody who speaks in their own language at this time.

A voice: Madam Chair, would I be able to speak today?

The Chair: I'm sorry, but the situation is that the public is welcome to listen to this meeting, but this is for the witnesses who have been scheduled from the Gitxsan Nation. Thank you very much.

A voice: [Inaudible—Editor].

The Chair: We will go with our scheduled witnesses for this morning.

Chief Martha Ridsdale, welcome. Please commence.

Chief Martha Ridsdale (Gitxsan Nation): Madam Chair, honourable members of Parliament, it's a pleasure to be here talking to you about the Nisga'a overlap. We have been talking about this issue for many years, and we are hoping to have this resolved today. I thank you very much for being here. That is all I have to say.

The Chair: Thank you very much.

Would the next speaker, Chief Jim Angus, please commence?

Chief Jim Angus (Gitxsan Nation): [Witness speaks in his native language].

I notice some of you are a little antsy because there's no translation. I will try to translate this after.

The Chair: The translation will be coming after. We have a translator in the booth, and if you'll just stay on your normal translation stations, it will come through during the pause. That's what I've been informed.

Chief Jim Angus: [Witness speaks in his native language].

• 0955

Three years, ladies and gentlemen, honourable members, guests, we were in court reflecting on and telling the courts and this country of our history as Gitxsan people. For every square inch of the territories we own, there is a history. There is a name for all of those territories.

Delgamuukw, as the head of our clan, our Gitxsan people, was our head representative. He was the key member, and the Delgamuukw court case is a world-renowned court case. It's one that just about every person in this world and every court of the world knows about.

Ownership and jurisdiction, honourable members, is who we are and what we are; it's what we reflect. When we put our blankets on—and you heard the songs today—those songs reflect the history of those particular houses. Because we have an oral history, history is passed down by way of song, by way of adaawk. Adaawk, as you will hear or probably have heard, is the history of each particular house, the name of the house, and the name of the chief. Within our territory there are a large number of chiefs, and it's reflected in our court case.

This booklet explains a lot of that, and we would ask that you, as honourable members and people with the standing committee, take the time to read that. Part of our very, very serious concern today is that the Nisga'a have overlapped into territories of particular chiefs who are sitting with us at this table. They have a history of that territory. It is their land, and they are going to apply the laws of our forefathers. We wanted to make sure you understood that.

With that, ladies and gentlemen, I will turn it over to Delgamuukw, Earl Muldon, to carry on with the presentation.

The Chair: Go ahead, Chief.

Chief Earl Muldon (Gitxsan Nation): Madame Chair, honourable members of the standing committee, chiefs, ladies and gentlemen, first I would like to thank you for inviting us to appear and make a presentation to you on those parts of the Nisga'a treaty that will have a profound impact on our lives.

I would like to thank Mr. Mike Scott, our member of Parliament, for impressing upon you the need to hear the voices of people in northwestern B.C. We would not have been able to tell you directly about our concerns if you had not been able to meet us on the territory of our neighbours, the Wet'suwet'en, who are graciously hosting us at this meeting.

• 1000

My colleague, Wii Eelast, James Angus, has already explained to you how we, the Gitxsan, have struggled to get recognition of our title to our land through the Delgamuukw case. I would like to point out that the Delgamuukw case is probably the most famous aboriginal title case in history. It is quoted worldwide.

It just so happens that my uncle, Albert Tait, was so respected by his fellow chiefs that he was chosen to be the lead plaintiff on behalf of all the Gitxsan people. We were all in this case together during the sad days of defeat and the happy days of victory.

It is therefore extremely ironic that the Nisga'a, with the assistance of the federal government and the provincial government, have been able to get fee simple title to a parcel of land in the territory of Delgamuukw that is many miles outside of their traditional territory. This blatant act of trespass is a violation of both Gitxsan and Nisga'a law.

I would like to tell you about some experiences that my house group has had with the Nisga'a on our lax'yip. Lax'yip, to some of you who don't know, is our territory. Our lax'yip at Gwinagiisduuxw connects us with Chief Maa li's lax'yip in the Nass Valley near Meziadin Lake. Maa li is one of the head chiefs of the wolf clan in the village of Gitanyow.

Several years ago the federal Department of Fisheries and Oceans funded the Nisga'a to conduct fisheries studies throughout the Nass watershed. This included a salmon spawning area within my territory on the Gwinageese River. Our family and those of our immediate neighbours in Gitanyow have a long history of obtaining fish from this river.

Our lands of Gwinagiisduuxw have been in continuous use for as long as we can remember, from my great-great-grandfathers down through time to my late mother. My brothers and I and my sisters and nephews continue to use our territory as our grandfathers did.

My late mother made a moderate living from the resources of this lax'yip until she passed away at the age of 83 in 1995. During the trapping season, which ran from the beginning of winter and lasted until early spring, my mother and father stayed in the cabins that my brothers and I built on our lax'yip.

One spring we discovered that the Nisga'a fisheries crew had set up camp in our cabins. We told them that they should evacuate our lax'yip. We warned them that if they did not leave in two hours, they might face the consequences. They heeded our warning and left on their own accord.

Much to our surprise, however, we found that the Nisga'a returned the next year and built two cabins on our lax'yip. They built those cabins using financial resources from the federal Department of Fisheries and Oceans. We again served them notice that they had trespassed and we told them to leave. Gitxsan ayookw, which is law, had to be invoked. We removed the cabins that had been wrongfully constructed on our land.

It is wrong that the Government of Canada and the Government of British Columbia continue to work with the Nisga'a to break our trespass laws, for now we know that the Nisga'a Final Agreement includes an island within the territory of Delgamuukw that has been granted to the Nisga'a in fee simple. This property is just a short distance from our cabins and about 60 miles from their core land selection.

• 1005

Even if Parliament endorses the Nisga'a treaty, I assure you that the Nisga'a will never again be allowed to trespass on our lands. I'd like to emphasize that. It is a serious business.

We cannot allow them to have access to our lax'yip. Both Canada and B.C. know that the Supreme Court of Canada in its 1997 judgment in Delgamuukw set a very high standard when it said that treaty negotiations “should also include other aboriginal nations that have a stake in the territory claimed.”

This aspect of Delgamuukw requires that the Gitxsan be part of the Nisga'a negotiations, at least with respect to Gitxsan territory and resources.

In 1996 our representatives presented the same concerns about the Nisga'a treaty to British Columbia's Select Standing Committee on Aboriginal Affairs. In its final report in July 1997 the standing committee recommended that unsuccessful attempts to resolve overlaps between the first nations should be referred to the B.C. Treaty Commission, with the further recommendation that the commission include mediation and arbitration in the resolution process.

On several occasions we have formally requested that the Nisga'a and the provincial and/or federal government appoint a mediator for the purpose of resolving this issue. To date the Nisga'a leadership have declined to participate in mediation.

As I mentioned previously, the Supreme Court has acknowledged, in Delgamuukw, the process we have used to validate aboriginal title. The court further stated that, and I quote, “aboriginal title encompasses an exclusive right to the use and occupation of the land...to the exclusion of both non-aboriginals and members of other aboriginal nations”.

The court went on to say that “it may therefore be advisable if neighboring aboriginal nations intervened in any new litigation”. The same principle obviously applies to treaty negotiations.

Notwithstanding the acts of trespass I just referred to, it is our position that the federal and provincial governments may have failed to exercise due diligence or to fulfil their fiduciary duty to us, the Gitxsan, by allotting lands and resources management to the Nisga'a in our lax'yip.

Furthermore, it is our view that the province is involved in trespass here, and it is unlawful for them to allot lands and resource management to the Nisga'a in our lax'yip. Nevertheless, if the Nisga'a treaty becomes law, then the province will have transferred its act of trespass to the Nisga'a.

We agree that the Nisga'a should have a treaty. We agree that the centuries-old effort by the Nisga'a to resolve their land claim should be dealt with, but it is not right to create a further injustice in the process.

• 1010

We too have spent more than a century trying to obtain justice with regard to the land. It is not unrealistic to take a little more time, perhaps as little as six months, to deal with the issue of overlap.

There is a vast body of evidence in such publications as Tribal Boundaries in the Nass Watershed, a 1998 publication, and the chapter on competing claims in B.C. Studies, volume 120, 1998-1999, which will contribute to your understanding of this issue.

Your committee can and should take the time to review in detail the issues we have raised. We are prepared to work with you in order to get the work done right and expeditiously. We look forward to your questions, ladies and gentlemen.

Thank you.

The Chair: Thank you very much for your presentation.

For the information of people gathered today, we will go to our first round of questioning. We will start with the opposition parties for five-minute rounds. The five minutes, ladies and gentlemen, is for both the question and the answer. After that the government will have a chance. Then we'll be alternating back and forth, again in five-minute rounds, until there are no more questions or the time has run out.

I will warn people again today that I will try to keep to the time so that people can follow up on each other's questions. It becomes a dynamic exercise in this way.

Mr. Scott, perhaps you'd like to commence.

Mr. Mike Scott: Thank you, Madam Chair.

Thank you, Chief Muldon, for coming here today and telling the committee about your concerns. I would like to ask you what specifically you would want to see this committee recommend to Parliament as a result of the hearings we're conducting in British Columbia right now. We're going to be asked to make amendments to this legislation and to report back to Parliament. What in particular would you like to see recommended as a result of this meeting here today?

Chief Jim Angus: Ladies and gentlemen, we have with us Chief Elmer Derrick, George Muldow, and Gordon Sebastian, who can answer some of the technical questions. I would like to call on Gordon Sebastian to answer the question Mr. Scott asked.

Gordon, please.

Mr. Gordon Sebastian (Member of Xsimwitziin): Thanks for the question, Mr. Scott.

What we would like to see is an amendment that the portion of the overlap not be given the force of law. As you heard Mr. Delgamuukw say, the province will have transferred its act of trespass to the Nisga'a. So we feel basically that right now the legislation on Gitxsan territory is trespassing and breaking our laws of trespass. For the governments to pass this piece of legislation, we feel they have to make a consideration that this is a further act of trespass by the province. We would like to request that the committee request that the overlap not be given full force until Mr. Delgamuukw's concerns are dealt with. Thank you.

Mr. Mike Scott: Thank you.

I think I heard Chief Muldon say during his address that he would like to see the ratification of this treaty put off for as little as six months, I believe you said, in order to give the parties involved an opportunity to try to resolve the overlap situation. Is that the thrust of your recommendation, that during that time you would like to see the kind of amendment Mr. Sebastian has suggested incorporated into the treaty? Is that really what you're looking at?

• 1015

Chief Earl Muldon: Yes, I would like to see that. It would give us a little time to look at this issue. Up to this date this whole issue has been ignored by the Nisga'a, the province, and the federal government. I would like to see time given to us to have our little say on what is happening here on the Nisga'a Final Agreement.

Thank you.

Mr. Mike Scott: Have you had meetings with the Nisga'a leadership? I know you touched on that a little bit, but could you give the committee some further information? Have you had meetings with the Nisga'a leadership in the last four or five years to try to resolve this? What has come about as a result of those meetings?

Chief Earl Muldon: Basically, off and on, as you realize, the chief of Delgamuukw, my Uncle Albert, my brother Ken, and finally myself have taken a seat with Delgamuukw. Over the last 15 years we have tried and tried to get to the table to discuss the overlap, but it has never happened.

[Translation]

The Chair: Go ahead, Mr. Bachand.

Mr. Claude Bachand: First of all, I'd just like to say how very much my colleagues from the Bloc and from the other parties appreciated the welcoming ceremony you held for us. I've often attended such ceremonies in my capacity of aboriginal affairs critic. We were deeply moved by your performance and by your colourful dress. It is a great pleasure for us to be here in Gitxsan territory.

I have two requests to make. Firstly, there are representatives of the Department of Indian Affairs in attendance. When I get back to Ottawa, I intend to ask these officials for a different map than the one we have here today. I think it should be possible to come up with a map that includes the Nisga'a land and the overlapping territory. I don't think you're alone in this situation. The Gitanyow, who will also be making a presentation to the committee, are experiencing a similar problem.

Mr. Muldon, could someone step up to the map and show me the location of the overlapping territories? When I get back to Ottawa, I'm going to ask the department to provide us with some explanations of this overlap and with a map. Could you quickly point out the area in question to me?

[English]

Chief Elmer Derrick (Negotiator, Gitxsan Nation): This is the area in question that he mentioned. He talked about the Gwinageese River, which is about 60 miles from their core lands. There's the Meziadin Lake up here. I won't take up too much of your time. The whole Gitanyow territory starts about here. I'll be able to explain it in better detail afterwards.

• 1020

[Translation]

Mr. Claude Bachand: I'd like some clarification and perhaps you can answer my question later. I don't know whether you're familiar with the agreement, but page 25 contains a provision which spells out the sequence of events that takes place if a conflict arises with other aboriginal nations. I would also like to draw your attention to article 34 of this agreement. It stipulates that if a superior court of a province, the Federal Court of Canada or the Supreme Court of Canada makes a determination, two things may happen. You've told us that the matter is before the courts and that you are awaiting their rulings. Therefore, two things are possible. Firstly, the courts may rule that the provision will operate and have effect to the extent that it does not adversely affect rights. However, as I understand it, in this instance, there are some adverse effects. If that's the case, then the provision will not operate and the parties will make best efforts to amend the agreement. If a court finds in your favour and determines that the agreement adversely affects your rights, then you must make an effort to amend the agreement. Do you believe that such an attempt would be pointless or, on the contrary, would you be willing to make an effort to come to some agreement with your Nisga'a neighbours?

[English]

The Chair: Chief Jim Angus.

Chief Jim Angus: Thank you for the question.

I have to admit, and maybe Gordie has looked at page 25 of the agreement that deals with the lands that are in question, what I would like to see is that we do not wait to apply that clause on page 25 to deal with the particular issue of overlap.

I believe that this committee, if they wish, could make changes or set it up in a way that this particular area of land is dealt with, before the agreement is signed. There may be an amendment that needs to be made to the agreement, and the small portion of it that has to do with the overlap should be set aside. It should be amended or set up in such a way that it can be dealt with and not become part of the agreement as it is today. Our chiefs are very, very strong about that. If you listen to what Delgamuukw had to say, he said the area of trespass will not be allowed. I would not want to see us come to a point that we are going to have to deal with people that trespass on our lax'yip. I believe as legislation is looked at there can be a way found to set it up so it can be dealt with expeditiously, very quickly, so that problems will not arise between our nations, our brothers, the Nisga'a.

We made it very clear also in our Delgamuukw statement that we want the agreement to go through. We support what they're doing, but we are not in agreement with the overlap. That is Gitxsan territory. We have adaawk, we have history to that territory, and there has to be a way found for it. I believe it's a little too late to apply page 25 of the agreement.

The Chair: Ms. Hardy, please.

Ms. Louise Hardy: You've stated that you do agree with the treaty process because it will be beneficial to everybody involved. I know there have been a lot of treaties, particularly in my area, where there are overlapping jurisdictions. If your treaty came first, so that you had claimed this land, which obviously the Nisga'a lay claim to as well, would you want your treaty held up in order to deal with it, when there are provisions in the treaty to deal with overlap? I'm just worried that if we can't go forward with treaties because everything isn't agreeable to everybody, the treaty process will be slowed down even more.

The Chair: Chief Angus.

Chief Jim Angus: What I said earlier was that we support the process, we support the Nisga'a with regard to their agreement. We believe that what they're wanting is what they're wanting. It may not reflect our thinking as Gitxsan people. The agreement we're working toward is very different from that of the Nisga'a.

• 1025

I believe the process can be set up in a fashion that the Nisga'a can have an agreement, but have that portion of overlap left for a period of time to still be dealt with. We don't want to hold up the Nisga'a agreement, but it can be set up in such a way that this particular area will be dealt with at a later date. And a process needs to be set up, because if you heard what Delgamuukw said earlier...[Witness speaks in his native language]. And those are just a few people who have lands and territories that are overlapped by the Nisga'a. Those territories have to be dealt with. We believe there are ways and means to do that and still go with the agreement, which deals with the major part of our territories. But leave those particular areas alone. There can be amendments to this agreement that would allow for a subagreement, in particular, to deal with the overlap at a later date.

The Chair: Thank you.

Mr. Keddy.

Mr. Gerald Keddy: Thank you, Madam Chair.

I would also like to welcome the Gitxsan delegation to the committee. It's a pleasure to be in British Columbia.

I should mention that I'm the critic for Indian affairs and northern development and for natural resources for the Progressive Conservative Party.

I had written a letter to the minister some time ago regarding the overlap with the Gitxsan, and the minister's answer was that this would be put to the B.C. Treaty Commission and that there was a process in place already that would deal with the issue. In the case that there were specific claims that couldn't be dealt with, there were still aboriginal rights for other bands protected under the treaty.

I'm not 100% sure that I agree with the answer; I'm just stating it. You had mentioned the possibility of some type of binding arbitration, so I guess my question to you is if you went to binding arbitration with a negotiator, sat down with the Nisga'a Nation and your nation, the two of you together, would you be satisfied with that answer if the ruling didn't come in your favour?

Chief Jim Angus: I will ask Chief Gordon Sebastian to answer that particular question. It's a good question.

Mr. Gordon Sebastian: Thank you.

We have an arbitration process and we will be able to show how the Gitxsan have possessed the land for the last 10,000 years. You would then believe and understand our position in terms of how the Gitxsan have this ancient connection to the land, and you will find that the reason the Nisga'a have never met with Delgamuukw is that they may not have that same connection. So you will see clearly how it is that Delgamuukw is connected to those territories. We would certainly invite any sort of arbitration, as Delgamuukw indicated. The Nisga'a have never participated with us, although we've tried many times with our ayookw. We've invited them to our Gitxsan meetings, and they've never participated.

Thank you.

Mr. Gerald Keddy: I have another question.

The lands in question are category B lands, outside of the category A lands. There is still a fee simple title process, but it's a different process, a different categorization from the category A lands. How much land is there in total? I'm just looking at the map, and it really doesn't clearly define it. Is it a couple of square kilometres?

Mr. Gordon Sebastian: The Nisga'a fee simple lands are not that large, but in terms of the Delgamuukw lands, the lax'yip is a very large area.

Mr. Gerald Keddy: I understand that. I'm trying to narrow down the amount of land the Nisga'a have claimed inside of what you recognize as your tribal boundaries.

Mr. Gordon Sebastian: I understand it's a few hundred acres.

Mr. Gerald Keddy: Okay.

Mr. Gordon Sebastian: In terms of the territory itself, it does affect the paying the Nisga'a a certain amount of resource and lands with lands taken from another group of people, not from the provincial coffers.

• 1030

The Chair: Ms. Karetak-Lindell, please.

Ms. Nancy Karetak-Lindell: Thank you.

Are you in the process of a land claims negotiation right now too? Do you have parcels of land that are already identified right now, in your claim?

Chief Jim Angus: We missed the question. Sorry.

Ms. Nancy Karetak-Lindell: Are you in the process of doing a land claim agreement right now, or have you submitted a land claim application to secure your lands? And do you have those lands identified within your group for that process?

Chief Jim Angus: Yes. As was mentioned earlier, the Delgamuukw case is a very famous case. We spent three years in the provincial court system and McEachern came down with a ruling that basically denied our claim. There was a Supreme Court of B.C. hearing that made some movement with regard to what we were claiming and then we went to the Supreme Court of Canada. The Supreme Court of Canada dealt with it in a bigger way, where we gained a lot of our title.

Gordon will be better to speak to the title portion of it with regard to how the Supreme Court of Canada came down with a claim, but there are maps. And if you look at the three-year court case we had in the provincial court system, there were a huge number of chiefs that were in the courts that actually talked and gave the adaawk.

If you remember what I said earlier, adaawk is the history of who we are, the simogit, the chief's name, how it came about, the house name of that particular chief and how it ties to the territory or the lax'yip, as we call it. And sure, yes, we do have a claim that is very, very well defined and it is in the court systems.

We also went to the treaty table for a couple of years, and the treaty table fell apart because of the different positioning we had. The province backed away from it and so did the federal government. So yes, we do have a claim, and it's very well defined.

Ms. Nancy Karetak-Lindell: But you had those lands identified specifically as to which parcels of B.C. you're claiming?

Chief Jim Angus: Yes.

Ms. Nancy Karetak-Lindell: Okay.

My next question then is I can't see a first nations group of people claiming land without having claim to it. I haven't had a chance to ask the Nisga'a about it, but what reasons are they giving that it is also their claim, that it is their land? They must have some claim to it and some explanation as to why they would include it within their treaty.

Secondly, is there any possibility whatsoever of joint use of that? In your earlier presentation you talked about trespassing, and in the English term today that means if one person has it nobody else can get on it.

Chief Jim Angus: Thanks for the question.

I believe we need to reflect on the fact that if you look at the Calder case, there was a presentation by the Nisga'a with regard to their boundaries. Then if you look at the different cases later on there were presentations by the Nisga'a and their maps changed. As far as we can see there are at least three changes from the time they started, at least two more after the Calder case.

With regard to sharing land, we have tried. Our people have tried to meet with the Nisga'a to compare. We actually went to one of the meetings, and I was present at that meeting, where our people, one by one, around the boundaries that connect with the areas, especially in the overlap areas, gave our adaawk. Our simogit gave the history of the land.

• 1035

I mentioned earlier, when we talk about history, simogit Delgamuukw has the name Delgamuukw. The adaawk reflects how Delgamuukw's name comes about. The adaawk reflects how the name of the house of Delgamuukw comes about. The adaawk reflects how Delgamuukw has ownership and jurisdiction over the particular lands they have, and there is a history of how those lands and territories come about that Delgamuukw has ownership and jurisdiction of.

That is what we presented in the courts. If you go back into the courts where they have the documents of the courts, especially of the three years, you will see the very detailed and comprehensive explanation of our adaawk—it is reflected in that—that each one of our chiefs have given. You take that, what the Gitxsan have presented in the courts, and with all due respect to the Nisga'a, go to their adaawk and see what it looks like. That is what Gordon Sebastian mentioned earlier. I believe when you really look at the details of our presentation with regard to how and why we claim the land.... And by the way, we don't claim the land; it is our land, there is no question about it. We were here, we own it, we still own it, and we'll still own it 50 years from today.

When we practise in a feast, the process in the feast hall is activities that happen within the government of the Gitxsan people; the government of the Gitxsan people is practised in the feast system. The chiefs are there to witness the different activities, the change of names, the change of territory jurisdiction, etc., and that is who we are. We had a government before contact, we have a government presently, and we'll have a government for years to come.

The comments our chiefs made when we were going to court.... Our existence is not because of legislation from any government. Our existence is because of who we are.

I hope I covered some of the areas you asked.

The Chair: Thank you. Mr. Gouk, please.

Mr. Jim Gouk: We have raised the question of land in dispute and overlaps and the potential of court cases dealing with this, and the general feedback we receive from other parties is that it is not a serious problem because the courts will deal with it and it's in the treaty. But I've heard you today say there will be consequences of trespass, and I can understand a concern of any group to say it's okay to take our land and then we'll try to get it back. I can understand your concern in dealing with that.

So when you say there will be consequences of the trespass, and others may think the consequence will be court action and they're prepared to accept that, do you have definitions of consequence of trespass other than a simple court action?

Chief Earl Muldon: As I explained, there is something really missing here, both from the federal and the provincial government. There is lack of consideration to even look at the previous existing laws we have of this land. Basically, what's happened here is the newcomers to the land have applied English law to its fullest without recognizing the laws of the land or even listening to any of it. It's kind of difficult; we have a system that was already in existence before the newcomers settled the land.

I would like just to see that they look at some of our law, study some of it and how it applies, because what's happened basically now is that these laws of the way lands should be dealt with are simply imposed on us. That's not the way we deal with land. I think there should be an opening there to listen to how the native people have applied laws to the lands they have existed on.

Thank you.

• 1040

Mr. Jim Gouk: I don't disagree with you. These things should be settled and, I believe, settled before any treaty is entered into. I think one of the great errors of the treaty process is that all people inside, over a particular region, where there can be overlap like this, where there is not agreement...otherwise, you try to correct a right for one group by creating a wrong for another, and we've resolved nothing.

What I want to know about, if you can answer, is this. Most people feel the overlap is not a real problem, that it is not a reason to slow down or delay the implementation of the Nisga'a agreement, because the court will deal with it. You will make a claim and the court will deal with it. However, you said there will be specific consequences of trespass. In telling us today of some of your more recent history, you mentioned actions you have taken when trespass occurred. I think it's important that the committee understand the consequence of implementing the treaty without resolving this. Is it only court action? Or is there something else you would do to protect the lands that you have stated are yours?

The Chair: Chief Angus.

Chief Jim Angus: That is a very good question. Our ayookw is set up in such a way that Delgamuukw land is Delgamuukw land and another chief has no right to walk on that land. There is a process that is in place with regard to our ayookw, our laws as Gitxsan people. It allows us to trespass on Delgamuukw land. I will probably get two warnings. The third time, it's not going to be a warning. Very direct action will be taken.

With regard to what is happening with the treaty process and the Nisga'a treaty, if it's a final agreement, it was very clearly stated to all of you as honourable members that by signing this agreement as a final agreement for the Nisga'a people, you will have turned over a trespass to the Nisga'a, and they will trespass our territories, our lax'yip.

We have really seriously discussed and talked about what would happen. We're here today to try to persuade you that there have to be means and ways for this overlap to be dealt with, by way of an amendment, by way of a special clause that enables us to deal with this particular overlap; you can add it to the agreement at a later date if need be.

If you sign that agreement, it becomes law, part of the laws of the province and the federal government, and it will infringe on our aboriginal title of ownership and jurisdiction. If that were to happen—and I say “if”—we will act on it, likely through the courts, and we will deal with it. Our view of this is that we see it as a waste of resources to have to go that route to try to correct something after it has become law. We believe the overlap needs to be dealt with.

We don't have a problem with you signing an agreement with the Nisga'a, but remove that overlap portion of land and deal with it. It can be added to the agreement at a later date.

The Chair: Mr. Gouk, you're out of time.

Mr. Iftody.

Mr. David Iftody: Thank you. Thank you very much for your presentation, chiefs and members.

I must say, Madam Chair, that I do recognize some of the faces around the table. I've met with some of them in Ottawa on previous occasions in discussing this particular matter.

• 1045

I have a question, which I can perhaps put to Chief Angus, if I may. The disputed territory you outlined only moments ago appears on the top right-hand corner of the map. For those who can see it, there is a little triangle there. You mentioned a lake, I believe. It's one of the most contentious issues. In looking at that map, it's my understanding that the area under dispute is probably about one or two square kilometres. I'll make that my first point.

The second point is that in a negotiated process, and in the negotiated process with the Nisga'a, there's always give and take and compromise. We heard from a Mr. Barton yesterday. In his testimony, he complained loudly. He has been to court on two occasions, at the lower and appeal court levels, disputing the Nisga'a treaty. He believes his rights as a member of that community were violated because the Nisga'a settled for 8% of their traditional territory. He feels, in his own words, if I can quote him properly, that this was some kind of sellout.

But obviously, when the Nisga'a started with 100% and ended up with 8% of their wish list, this was a three-year, very difficult process, in which give and take occurred. They settled what they felt was a very honourable settlement—with some relief.

I am led to believe by the positions taken by your groups that you are sort of maintaining that 100% position. In other words, if I contrast your feelings, your views—which I must say parenthetically here that I personally respect very deeply—I am having some difficulty in the concept of fairness. If that territory is quite small and the Nisga'a have reduced theirs.... Incidentally, they have no governmental jurisdiction over that area that you point out.

If they reduced theirs to 8% and you're still out there at 100% in your negotiating position.... Don't you think first nations brothers and sisters could negotiate a settlement that is reasonable, peaceful, and amicable and that we wouldn't have to talk about these things such as trespassing and so on? I know that with your own people you find it difficult even to say it publicly.

I guess this is my reasoning. For that piece of land up there, you want to halt the whole treaty process. Under the principles of equity and fairness, sir, I'd like you to explain to the committee how you arrived at that. Perhaps you could answer those questions, Chief Angus.

Chief Jim Angus: Thank you for the question. I've said it before: we do not want to hold up the Nisga'a treaty. It never was our intent. Our focus is particularly on the area of overlap. We have, over the last 15 years and even longer than that, tried to negotiate with the Nisga'a. In our approach at the very beginning when we talked treaty, we said to the treaty process that overlap land is an internal matter among the first nations people, that it's not for the government to settle. We still say that. It is not for the government to step into Delgamuukw territory and say they are going to give Delgamuukw territory to the Nisga'a. It isn't. We're saying that territory is ours.

The other rider to our negotiations at the treaty table has always been coexistence. It's a matter of definition as to how far we are going to go with respect to ownership and jurisdiction and the sharing of those particular areas.

• 1050

At this time we're not in the position to make that statement that we're prepared to share. It may be only two square kilometres, but that land belongs to our people and we believe we should have been involved when the Nisga'a treaty was negotiated. When it touches the land of the Gitxsan people, we should have been sitting at the table when that particular area of land was being talked about.

With that, I'd like to ask Gordon Sebastian to add to those comments.

Mr. Gordon Sebastian: You see, we never had the overlap claim until about the second map that the Nisga'a produced. Way back in the early days when they first went to Victoria and Ottawa, they had Nisga'a lands. We don't know the reason for them expanding into Gitxsan territory, but as you know, we have the ancient connection, which has been stated to you quite strongly today.

The Delgamuukw decision from the Supreme Court of Canada sets out a process to recognize those ancient connections. That is why that particular decision has been left out of the Nisga'a situation. This case was developed by the Gitxsan, and the decision itself applies strongly to the Gitxsan position. There's no way the Gitxsan will lose those territories through land selection or government giving it away. So you're stuck with the Gitxsan and the ayookw, the Gitxsan law, and Delgamuukw.

Mr. David Iftody: Thank you.

What I'm sensing here is that we're moving away from the actual point of dispute in the sense that it's one or two square kilometres, but there's a sense that you're saying to the committee that it's not so much the land in question but being included in discussions, and you feel that your feelings have been disrespected or hurt in some way. Is that what you're conveying here?

I would say to you, sir, that I would think, given the overall picture of this thing, I know if you held your court case abeyance to sit down with the affected parties and negotiate a settlement, I truly believe this can be accomplished quite easily, given the small size of the property under dispute. It should not become the thin edge of a wedge for ongoing problems between two first nations.

Mr. Gordon Sebastian: No, you're not hurting our feelings; what you're doing is attempting to use land that has belonged to the Gitxsan people for at least 10,000 years. We buried our people. Our blood is in that land.

It's not our feelings you're hurting. What you are doing is ignoring the Gitxsan. That's what you're doing, and that's just the basis of it.

The Gitxsan have attempted many strategies to indicate to the public how the Gitxsan are connected to the land and have continuously been ignored. Sadly, if you think you're hurting our feelings, I think we're just going to have to sit down together so that we can educate you as to how we're connected to the land so you will understand that trespass is very important to the Gitxsan, and also to the Nisga'a. They know what they have done. Your government also knows what they have done. The Gitxsan are telling you that the tolerance level is going to be very low.

The Chair: That's it for that round.

[Translation]

You're next, Mr. Bachand.

• 1055

Mr. Claude Bachand: Madam Chair, with your permission, I'd like to correct something that my colleague Mr. Gouk said. He maintained that according to the general feedback received from other parties, the problem wasn't that serious and that the courts would deal with it. I have to say that the Bloc Québécois is not a firm believer in letting the courts resolve disputes. Just yesterday, we discussed this. We favour a negotiated settlement of disputes.

I also wanted to let Mr. Angus know that I understand his strong sense of attachment to the land. I have an amusing tale for you. When I was appointed aboriginal affairs critic, I went to see representatives of the Mohawk Nation, one of the proudest nations in Canada, and I told them that we were prepared to give back the lands that had been taken from them. Their answer was: "We don't want the lands back. They've always belonged to us." I understand your fundamental ties to the land and I can understand your position on this issue.

Now, before you decide to take direct action—and those are your very own words—let me just say that we are firm believers in the negotiation process. This process must be followed through to its natural conclusion and in my view, that hasn't happened yet. We are pleased that the Nisga'a have concluded an historic treaty and we are pleased to have been participants in this process, but everyone deserves justice. Clearly, there is a problem here. And this afternoon, we will hear about another problem when the Gitanyow Nation make their presentation to the committee.

There are three possible courses of action. The committee can step in and say that it doesn't want the government to enact the legislation until such time as these disputes are resolved. That would be very difficult, but admittedly, not impossible, for us to do. We can bring pressure to bear on the federal government to attempt mediation, with the help of the British Columbia Treaty Commission. You've requested mediation, if I understand correctly, but the Nisga'a have refused. Finally, there is the possibility of negotiating the terms of the treaty's implementation. The interesting thing is that once the treaty is signed, apparently it's no longer part of the agreement. The support of British Columbia, the federal government and the Nisga'a is not required to implement the agreement, because it's a separate chapter. I'd like to meet with your team of negotiators later to see if we can explore this matter further. I believe this is one option worth considering. I have to tell you right now that this is also our preferred course of action. We would like all parties to reach an amicable settlement and for everyone to be comfortable with this settlement. As I understand it, you're not pleased with the agreement because part of your territory is being taken from you.

If you like, I can meet with you later and leave you my business card. If we need to get in touch again once I'm back in Ottawa, then the Bloc Québécois will be more than happy to listen to your concerns. I'm interested in your reaction to the chapter on the implementation of the treaty.

[English]

Chief Jim Angus: Thank you for the comments, and thank you, Madam Chair, for recognizing.

I want to start responding to those comments by making something very clear. Our adaawk as Gitxsan people includes a history, as I said, of the name of the chief, the house of the chief, the lax'yip of the chief, the crest of the chief, and the totem pole of the chief. That particular adaawk includes all of that. That particular adaawk includes one of the most important factors as Gitxsan people, and that is land, lax'yip, and lax'yip is Delgamuukw. Delgamuukw cannot let go of his lax'yip.

When you hear people making statements that our land is not for sale, that is exactly what we mean. We will not be separated from our land, and we want you people to know that. We want you to understand why there were certain statements made at this table today that we will apply our trespass laws if need be; we will go through the courts if need be. We're saying to you that this process need not stop, but that particular area needs either to be amended or a special clause put into it so it's dealt with at a later date.

• 1100

I am very pleased to hear my friend asking to meet with our negotiators in our group so that we can look at avenues and try to deal with the particular issue of overlap, and we will most certainly set up to do that. We want to connect with people who want to know about who we are. But I want to make it very clear: land and the Gitxsan you cannot separate.

Thank you.

The Chair: Okay. That's the rest of that time.

Mr. Finlay, go ahead, please.

Mr. John Finlay: Thank you, Madam Chair.

I want to thank our visitors for their candour and their outline of the problem. I must say I also support the suggestions from everyone, including Mr. Claude Bachand.

I guess I've served on this committee longer than anyone else present, or at least as long. I have a very uneasy feeling, and I want some questions answered, because I think we're not quite understanding.

You went to the map. The green land is Nisga'a land. The land in dispute, I take it, is a little bit of category A or B land.

A voice: It's B.

Mr. John Finlay: Okay. Within the huge territory—and I have your maps, because I met with you in Ottawa—which surrounds like a huge halo all that land.... There are three sections in this agreement—33, 34, and 35—that cover precisely what you are talking about. But you see, you're not really talking about a little piece of two square kilometres; you're talking about a principle.

I must say it's too bad that two first nations who've lived on this land for 10,000 years or more, and apparently peacefully, I take it from your description, and with laws that set out trespass and so on.... It's not a very good example for us to have you say you cannot settle this issue without arbitration, or we must go to the courts over a few hundred acres.

You mention the term “newcomers”, Chief. Do you have newcomers in this Delgamuukw land we're talking about? Yes or no? Do we have newcomers? And how did they own their land? Did they have a fee-simple title to their land within Gitxsan territory? Do they own the land now, then? Were you compensated for it?

Are they Canadians too, as I trust you believe you are? We have a constitution that covers you and all the rest of us in this country.

I think I've been misled, because it seems to me that in answer to my colleague's question, you said yes, you were in treaty negotiation. Well, I'll have to find out about that. That's not the way I hear what you're telling me. I hear you telling me the court came down with a decision that was favourable to you, and that's fine and we have to live with it. But there is a treaty process in B.C., and it's not going to change radically. So I'm not sure whether you're here or whether we're in never-never land.

I go back three and a half years, when we were trying to settle a problem with management and land claims on a river in northern B.C. and the Yukon. Mr. Ovide Mercredi came to talk to us, and it was very difficult to talk about the problem at hand, because he wanted us to tell Parliament and everybody else that aboriginal people owned the whole country, and then we'd go from there.

We recognize that that was the situation, but we have some years of history, and the rest of the citizens of B.C. aren't going to go away, so eventually we're going to have to settle the problem.

• 1105

I think it's too bad, Chief, that with all your oral history, which is somewhat similar to that of the Scottish clans', who had tartans and chiefs and who fought together.... You people got along without fighting very much, I take it, and I don't think now is the time to start.

Thank you, Madam Chair.

The Chair: Thank you.

Chief Muldon.

Chief Earl Muldon: Thanks to the last speaker for his comments about citizenship. In my work I've travelled the Orient—Japan, Korea, you name it—and I've worked there. He called me a citizen of Canada. It's very rare that this happens, that anybody believes we are truly citizens of Canada.

We too believe that, but I'd like to relate a little experience. When I was in Tokyo, the Government of Korea asked me to come as a Canadian citizen, as a native person, to go and work in Seoul. To be able to do this, I had to go to the Canadian embassy in Tokyo. That just about knocked the wind out of me.

I went there and applied for a work visa as a Canadian citizen to go to work in Tokyo and represent Canada. The embassy in Tokyo told me I was not really a Canadian citizen according to the Canadian government. I was a ward of the government. They look after me.

Now, it's really hard to take something like that when you were born in Canada—generations of your elders have lived there—and yet you're still not fully recognized.

I was told they would write a letter to Ottawa. I said, well, why don't you fax it? He said no, it's legal to mail it. That meant it would take three weeks to get over there, and if it gets off somebody else's desk, it could be three or four months before it got back to them at the embassy. And this was something an immediate decision was required on.

That's just to state that to so readily call me a Canadian citizen, I thank you.

The Chair: Chief Angus, I understood you wanted to add a point before we go the next round.

Chief Jim Angus: Yes.

The Chair: We're just about finished the time for this round, so please go ahead.

Chief Jim Angus: I'm sorry to sense a little bit of disrespect from my friend who just spoke about questioning us with regard to our citizenship.

In 1982, section 35 of the Constitution recognized first nations people. What Delgamuukw mentioned just now applies to me. I live on a place they call a reserve, in Kispiox. I don't own the land I live on. I'm basically a ward of the government. I have a house, which I've spent all kinds of money on to improve, to make it livable, so that I enjoy my life in that particular house. I don't own that house. That is why we're trying to deal with our situation.

With respect to the newcomer comment, as far back as our history gives us, we can probably cite that we were in existence 10,000 years ago in this country. We made contact with newcomers when they came to this country maybe 150 years ago in this portion of the country. In the east it was 300 or 400 years ago. That's what we're talking about when we're talking about newcomers.

Do the newcomers have property on our territory? Yes. We have always said, right from the very beginning when we sat down and went to court, that we could coexist with the newcomers to this country.

• 1110

This particular community we're in now is owned by the non-native people who live here. We recognize that. We accept the fact that they can stay here. How we deal with them later, when we have an agreement, has to be worked out with regard to taxes, laws, etc. That has to be worked out.

We were in a treaty process, but as I said earlier, the federal government and especially the provincial government backed away from that process. We have tried in every area to set up an agreement with regard to dealing with government, dealing with third parties, and dealing with the newcomers to this country.

With all due respect to the newcomers—and a lot of them are my good friends, so I'm not calling them newcomers to be disrespectful—we have made efforts at those particular things.

The overlap issue needs to be dealt with. We're prepared to look at different avenues. We are very prepared to do that.

Thank you for listening.

The Chair: Ms. Hardy, please. No questions?

Mr. Keddy, do you have questions?

Mr. Gerald Keddy: Yes, I have some questions, Madam Chair, thank you.

The question of land ownership is certainly a question I recognize and understand fully. I say that as a farmer, as someone who works the land and can walk over the lands I control, certainly, and show you every rock and every tree and every brook on it. What we have here, I think, is an issue of ownership, but there's also a greater issue at stake.

I wasn't privy to all of the negotiations that went on with the Nisga'a, but it was my understanding that when that process was in place, all other first nations affected by Nisga'a land claims and everybody else affected—for instance, sawmills and logging interests—would be part of that negotiation process.

I can tell you for a fact that the Progressive Conservative Party supports the treaty process, because we see that as putting closure on a number of issues that have been ongoing, and we have to move on from that. However, we talk about arbitration.

If you sat down with a negotiator and you didn't receive the negotiated answer you were looking for, would there be another possibility? It's obvious the Nisga'a have some interest in these lands. I assume these interests are because it's part of the headwaters on the Nass River, or part of the headwaters that feed the Skeena, or the area where salmon are spawning that all the first nations are using. Is there an opportunity that, for instance...?

I don't want to put words in your mouth. I'm just trying to present a different scenario.

If the Gitxsan had responsibility for that area because those areas affect other bands—salmon are spawning on those grounds, say—would you be willing to look at some type of overall agreement where all the user groups who benefit from the salmon returning to spawn in those areas, if that's correct, would have some say in how those areas are preserved? I could ask that to the Nisga'a as well.

For instance, maybe you'd look at a forestry operation that wouldn't encroach upon your riparian strips or your riverbanks and that wouldn't dig gravel out of the banks. Would you recognize that other groups would have some interest in that area even though you would retain ownership of that land?

Chief Earl Muldon: You're referring to one of the comments made about salmon and things like that.

• 1115

With regard to the territory I mentioned in my speech, I personally have been involved there for about 30 years, and my ancestors were there before me. We have been basically managing the resources from that area for 30 years, inasmuch as my family has provided the mapping of some of those particular territories as far as salmon streams are concerned. I've worked with the game department to protect the grizzly habitat, the swan nesting. Basically, I've laid out on the map where the salmon streams exist and what kind of salmon and what kind of trout live in the lakes around the whole area. That's how I have treated my territory and the territory around it.

I have worked with the game department, the biologists and the forestry to see that the land is used properly. So it's nothing new for the Gitxsan people to have helped through the newer agencies to manage some of those territories now.

Mr. Gordon Sebastian: Dealing with third parties and also with ownership, Mr. Angus has indicated clearly that the Gitxsan have ancient possession of this land. And when you have possession of land in a common-law world, the person who is trespassing has to show better title. So your governments, federally and provincially, have to show better title.

So where are you going to get that better title from? My suggestion is you're not going to. So you're going to have to recognize the Gitxsan possession of that territory, and we're going to have to reconcile that possession with your interests.

The Gitxsan indicated clearly at the start of our court case, in all our negotiations, that we're willing to accept third-party interests. We've always stated that. We do not want to exclude anyone; we always want to set up a process to accept the third-party interests. But before the third-party interests are there, we don't like the imposition that's been done.

I don't know if it's the Liberal Party or not, but I have a sense that a Reformer slipped in over there. I'm just teasing.

The Gitxsan have to be recognized in terms of their ancient possession of the land. That's all we're stating here today. We just want that addressed. So if there's a process my friend can come up with in terms of negotiating how the third-party interests are going to be dealt with, including the Nisga'a.... They're becoming a third-party interest on our lands, so we want to set up a process to deal with that. It's going to take leadership from the Liberals.

We like the Bloc Québécois. They want to meet with us and we'd like to invite them over. We'll set up a process and work together on how we're going to deal with third-party interests on Gitxsan land. That's all we're talking about.

The Chair: Mr. Iftody.

Mr. David Iftody: Thank you, Madam Chair.

I'd like to pick up on the line of questioning, and I think Mr. Keddy was going there as well. We seem to be circling around the same notions in terms of some settlements. I'm very interested in clarifying the thinking of the group here today with respect to parts of the general provisions within the Nisga'a agreement.

• 1120

In paragraphs 33, 34, and 35 of chapter 2 I believe that is again being consistent with the Supreme Court instructions in Delgamuukw. There are provisions within the agreement whereby if section 35 entitlements or rights by other parties are affected by way of the Nisga'a agreement, there are avenues, remedies available to address those specific concerns. Frankly, it allows the affected parties to bring those rights forward in the appropriate milieu or context and perhaps to argue those.

Without repeating too much and pressing the point too far, I would really like to hear from your technical people on their views on these particular paragraphs. Perhaps I could take a few minutes to read the following:

...if the provision cannot operate and have effect in a way that it does not adversely affect those rights, the Parties will make best efforts to amend this Agreement to remedy or replace the provision.

What they're talking about, of course, and previous to that, is the affecting of rights.

Let me go back to paragraph 34, and I continue to quote:

If a superior court of a province, the Federal Court of Canada, or the Supreme Court of Canada finally determines that any aboriginal people,

—and I would suspect in this case that would be the good folks in front of us—

other than the Nisga'a Nation, has rights under section 35 of the Constitution Act, 1982 that are adversely affected by a provision of this Agreement...

Then it sets out in subparagraphs (a) and (b) two avenues where we can deal with these contemplated problems. I already quoted from the second one. Subparagraph (a) says:

a. the provision will operate and have effect to the extent that it does not adversely affect those rights;

So what they're saying in legal jardon here is that there are possibilities other than getting into disputes about who is trespassing and what will be done and how many warnings will be given. There are provisions even within the treaty itself and consistent with other Supreme Court decisions that allow the affected parties to address these problems.

So if you have read this paragraph and are familiar with the general provisions of the treaty, there are possibilities for the two affected parties to sit down and come to some resolution about the concerns—in this case, the two square kilometres of land. We do have those provisions in the treaty.

I'd like your technical people to comment on paragraphs 33, 34, and 35, and if they are at all comforted by those provisions in the treaty, which I believe, Madam Chair, speak directly to the concerns enumerated here.

Chief Jim Angus: Thank you.

First off, I would like to point out that we're not talking about a few kilometres of territory; we're talking about quite a large amount—4,303 square kilometres in the Nass watershed and 3,486 square kilometres in the Portland Canal and Observatory Inlet. So we're talking about a large area of land here, and we're not satisfied with this particular paragraph.

Mr. David Iftody: Excuse me. I want to clarify that.

When you went to the map earlier, in the top right-hand corner you mentioned the name of the lake and you identified a small area where we have a a small triangle. Each one of those areas in that lighter pale-yellow area represents, as I understand it in reading the bottom of the map, a few square kilometres. That was the hot spot of this deeply contentious issue. Your folks pointed that out this morning. But now you're saying it's somewhere different.

• 1125

For the purposes of the arguments on this particular issue, I think we should stay very focused and clear on that particular area, because your earlier intervention, sir, or at least that of the people who appeared before you, clearly outlined that was the area of contention. I don't want to spill over into other areas to confuse the facts here. It's really important to stay focused on those particular points of contention that we might be most helpful in resolving. That's the point I want to make.

Then I'd like to hear your comments on whether you think the provisions in the treaty under paragraph 35 on guaranteed rights—which are yours—can be of some help to you.

Mr. Gordon Sebastian: Yes, thank you very much. I would just like to point out again that the area we are talking about is a large area. If you recall, Delgamuukw said: “I would like to tell you about some experiences that my house group has had with the Nisga'a”. So when he referred to some experiences, that included the little area you're talking about.

But what we're talking about here is the Delgamuukw lax'yip. That's the whole territory and all the other houses that are involved. We're not talking about a small area here. We want to keep your focus on the Gitxsan lax'yip, the Gitxsan territory. We don't want you to lose that focus now or to belittle the position we're taking here. We don't want you to go away with any impression that you've negotiated a reduction of the Gitxsan territory.

The Chair: I would like a clarification, as the chair. I understood that Chief Elmer Derrick pointed to that one small area. Is that not what happened earlier today? I just think we should be clear on this, because we will be talking apples and oranges then.

Chief Elmer Derrick: Yes, Mr. Bachand asked about the territory Delgamuukw was referring to. I had to point it out at Gwinageese Lake.

The Chair: So that was the less than two square kilometres area.

Chief Elmer Derrick: That's right.

The Chair: Thank you; that's the clarification I needed.

Gordon Sebastian, go ahead.

Mr. Gordon Sebastian: Just to keep going, we are talking about all the territory, all the Gitxsan lax'yip. We're not talking about the small little fee simples. The fee simples come in terms of third parties and the Nisga'a legislation.

With regard to this section on other aboriginal people, the Nisga'a know right at this very moment that they're gluk, that they have caused an embarrassment to themselves by encroaching on Gitxsan territory. They have never wanted to meet with the Gitxsan or the Gitanyow to deal with that.

In terms of the ayookw, the Nisga'a have the same ayookw as the Gitxsan, and they understand them clearly. They have now embarrassed themselves. So they will have to deal with that, and we'll deal with them under our own laws, as to what their obligations are and what our obligations are in those terms.

Since this is a third-party process that's set up within the legislation itself, we don't feel it is sufficient, because the terms of reference in there do not deal exactly with what we're concerned about. Because of the negotiation process, we don't feel that the federal government has set up terms of reference to deal with the Gitxsan process, as to how we are connected to our territories, through our ancient connection to the land.

The federal government has never set up policy or terms of reference to deal with the Gitxsan or the Gitanyow. Sure, this is nice, and we appreciate it, but we would like to have been consulted further as to how to deal with the terms of reference in this particular section. Then we could have dealt with it. But as I said earlier, we've been ignored. We and Delgamuukw are here to tell you we want those changes made before any further encroachment happens on Gitxsan land.

The Chair: Thank you.

Mr. Scott, please.

Mr. Mike Scott: Yes, thank you Madam Chair.

You've mentioned several times that the Nisga'a maps have changed over time. I'd like to deal with that just for a minute.

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I've had the opportunity to read the book Tribal Boundaries, written, I believe, by Neil Sterritt, who is Gitxsan. It is my understanding that the change in the Nisga'a maps did not occur as a result of the Nisga'a looking at alternate areas from the original map they were working from; it was actually an expansion of the areas. Is that your understanding as well?

Chief Elmer Derrick: Yes, Mr. Scott. From the time the comprehensive claims process started, we have been following the way the Nisga'a have changed their boundaries. If you review the history of their claim, they have continually taken the approach that their traditional lands included the whole Nass River watershed. We've always come to the table saying let's determine who has aboriginal title to that. That's basically why my colleague, Chief Angus, pointed out that we spent a few years in court, providing much detail about the lax'yip of Hleekamlaxya, Will goobl, Delgamuukw, and others who have legitimate claims to the territories in the upper Nass.

You will hear from the Gitanyow how they justify their territories and their title, which includes a small part of that green area on the Nisga'a core lands.

Over the past couple of years, the federal and provincial negotiators have not taken the Nisga'a to task to have them justify their claim title to the territories. We're still willing to sit down, go through an arbitration process, and have somebody make a ruling, if necessary, on who has actual title to the territories that are involved.

We take very strong issue to the fact that the Nisga'a have always overstated their claim, and the core lands probably exceed more than 25% of their legitimate territory. We don't quibble with that. They pulled one over on the negotiators from the crown. But we take issue with the fact that they still use our Gitxsan territories as part of how they arrived at their claim.

Mr. Mike Scott: Thank you, Mr. Derrick.

I'm familiar with what I think was the first map the Nisga'a used in the 1970s, during the time of the Calder case. If my memory serves me right, that particular map showed about 7,000 square kilometres of territory that the Nisga'a were claiming as traditional Nisga'a territory. In the final negotiations in the late stages of the Nisga'a agreement, that map had been redrawn to include 23,000 square kilometres of land, including territory that had been claimed by the Gitxsan and Gitanyow people. Am I understanding that correctly?

Chief Elmer Derrick: As I said, we have been monitoring how they've altered their maps over a period of time. If you go back to the historical documents from 1913, you will find that they are fairly close to their traditional territory shown on the first map they tabled in 1913.

Mr. Mike Scott: Thank you.

Could you explain for the benefit of the committee the relationship between the Gitanyow and the Gitxsan, just so everybody understands what that relationship is?

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Chief Elmer Derrick: If you look at the relationship we have, in terms of how the Gitanyow have developed their own claim, they are still part of what we regard as the Gitxsan Nation. I was born in Gitanyow myself. My father was a chief of Gitanyow and both my grandfathers were chiefs of Gitanyow. But my title is located in Gitsegukla. A lot of the people who are living in Gitanyow now have titles elsewhere—Kispiox, Gitsegukla, Gitwangak, and other Gitxsan locations.

The Chair: Thank you.

[Translation]

Go ahead, Mr. Turp.

Mr. Daniel Turp: Thank you, Madam Chair.

First of all, we're pleased that you want to meet with us to consider possible solutions to this problem, one that clearly is important to you and undoubtedly to other nations.

I'd like to ask you if it's possible to devise some process and come up with a solution to this sizeable problem, without threatening the Nisga'a agreement in the process.

You realize, as we have, that many people, for various reasons which in our view are unfounded, do not want to see the Nisga'a agreement go forward. Some of these people are seated right here at this table.

Like most of the political parties represented in the House of Commons, we want this agreement to be ratified and implemented.

Can you find a way to resolve this dispute with the Nisga'a regarding the issue of overlap without threatening the overall agreement as such?

[English]

Chief Elmer Derrick: As has been stated by other chiefs here, we have tried to sit down with the Nisga'a over the past number of years, and we have received letters from the several different Ministers of Indian Affairs suggesting we participate in a treaty process to arrive at a resolution for our situation. We have resisted participating in the B.C. Treaty Commission process, as was correctly pointed out by Mr. Keddy.

It was suggested by Mr. Nault in a letter he replied to, which was received by Jane Stewart, that we deal with these matters directly with the Nisga'a, using the B.C. Treaty Commission process. We have tried to use the B.C. Treaty Commission process, and as was pointed out by my colleague Jim Angus, we were left sitting at the table when the B.C. government abandoned our treaty process a few years ago. We tried to use the B.C. Treaty Commission to bring the Nisga'a to the table to take us through this process of resolving their overlap, their claim over our territories. They resisted. They clearly resisted.

The B.C. Treaty Commission process had suggested we develop evidence for them and the arbitrator to review, and we did that. It took us a long time to develop the tribal boundaries book, and it cost us a substantial amount of money, money we didn't have. We expected the Nisga'a to produce the same kind of evidence that was asked of us, but they never did.

So what we're saying right now is we're still willing to sit through and deal with the bringing of information to the table that will review both sides of the evidence, both the evidence we presented to the Supreme Court over a number of years and the tribal boundaries book, as well as other evidence that you'll hear from our oral histories.

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I don't see why this Bill C-9 has to be rammed through Parliament. It has to be done right, and I do believe you have more than enough time to allow us to take it through an arbitration process and have this parliamentary committee monitor that process so that both parties, both the Nisga'a and ourselves, are heard properly. I don't see any urgency of ramming this thing through Parliament. We agree that it's a very important issue, and it has to be dealt with properly; it has to be done right. We're willing to participate in any process that takes us through that just and rightful process.

The Chair: Ms. Hardy, do you have any further questions?

Mr. Keddy, go ahead please. This will be the last five minutes.

Mr. Gerald Keddy: There are a couple of issues at stake that I think you and everyone else in this room should be absolutely clear on, and that is the fact that this treaty's been signed by the Nisga'a, it's been signed by the Province of British Columbia, and it's been signed by the Prime Minister. So really, it's going to be very difficult to present amendments to the process at this point. I suspect the rest of the opposition parties as well have no problem putting an amendment in, understanding the difficulty in the process of getting it approved.

For all intents and purposes, the treaty is ratified now. It's only awaiting the ratification of Parliament. That doesn't make this process completely futile. I think it's an important process, and it's a good thing we're out here in British Columbia, but we shouldn't underestimate the difficulty of changing the Nisga'a treaty from what it is at this time. With three parties agreeing to the change, it certainly can be amended.

There may be room in the process to put an amendment in—and I think you suggested that at the beginning—to enable it to be resolved in the future, and still ratify the treaty as it exists. This would be without coming down and trying to make a decision we're not capable of making, with the information in front of us right now, clearly, of who's right or who's wrong or how this can be resolved. I'm not sure that can be done or if we can get that type of an amendment approved by Parliament, quite frankly; however, the possibility is there.

Would you agree to go along with that process, if there's room in the treaty for an amendment or for a negotiated process after it's approved? I realize I'm not presenting exactly what you're looking for, I'm just...

Chief Elmer Derrick: As I said, I believe there's time for this committee to allow us to make our case directly, under a supervised situation, between ourselves and the Nisga'a, so that we can justify our title, as we've done in the courts.

Mr. Gerald Keddy: Thank you.

The Chair: Anything further, Mr. Keddy?

Mr. Gerald Keddy: No.

The Chair: Okay. I'm going to take these last few minutes to thank very kindly all of the witnesses today. I think you've helped us in our process.

To my colleagues, even though we went the 15 minutes over to give the full time this morning, we will commence sharply in 45 minutes for our afternoon meeting here.

Chief Angus, do you wish to say a word?

Chief Jim Angus: I'll be very brief with my thank you to the standing committee for asking questions, because that, to us, is very important. That education needs to be done across this country so that you understand first nations people.

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I am very glad to hear that it may be very tough to make amendments, but it's possible, very possible.

With that, on behalf of the chiefs, on behalf of the Gitxsan people, thank you very much for the opportunity to be heard. May God guide you as you carry on with the work you need to do.

The Chair: Thank you.

The meeting is adjourned.