ENVI Committee Meeting

STANDING COMMITTEE ON ENVIRONMENT AND SUSTAINABLE DEVELOPMENT

COMITÉ PERMANENT DE L'ENVIRONNEMENT ET DU DÉVELOPPEMENT DURABLE

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, May 2, 2001

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[English]

The Chair (Mr. Charles Caccia (Davenport, Lib.)): All right.

First, welcome to all of you here in this room, and particularly those at the table. We are very pleased you were able to come. There are six groups on the agenda today, and we may have a vote at 5:30 or so. It is not quite certain.

I see Mr. Coon Come has arrived, so perhaps we should go back to the original scheme. We thought he would be delayed, but please let's now stick to the original plan.

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On behalf of the members of the committee, let me extend to Matthew Coon Come, Jason Knockwood, Patrick Francis, Bill Lightbown, Phil Fraser, and Bob Stevenson a very warm welcome.

You are familiar, I'm sure, with the issue before us. We would like to have from you, possibly, a brief presentation, so as to allow then for a round of questions by members of the committee. Possibly, by keeping all this within one hour, we can then hear the other group around 4:30, in case a vote is called at 5:30. We wouldn't want to have the proceedings interrupted by something we could not anticipate or plan for ahead of time. This is a development that is new for us as well, namely the possibility of a vote.

I suppose the first speaker is from the Assembly of First Nations. So I invite Matthew Coon Come to take the floor for a brief presentation.

Grand Chief Matthew Coon Come (National Chief, Assembly of First Nations): Thank you very much, Mr. Chairman.

If I may, can I ask a couple of questions? I notice there are several presenters here. To go through my presentation will take about 15 to 20 minutes. Is that allowable time here?

The Chair: If that is the total presentation of all three groups, yes. If it is by one group, it would virtually make it impossible to have an exchange of questions and answers. So it would be better if each presentation could be limited to five minutes or so.

Grand Chief Matthew Coon Come: I'm sorry, Mr. Chairman. I was under the assumption that we each had 15 minutes at least to make a presentation.

The Chair: Well, keep in mind the limitations under which we're all operating today because of this possible vote. I'll leave it to your discretion to reduce the presentation where possible.

Grand Chief Matthew Coon Come: Okay. With that, then, I will go through the Assembly of First Nations brief. I'll go directly into the headings I want to address.

First is the listing of the wildlife species at risk. The requirement that the list be established and approved by the Governor in Council has the effect of making the listing of species a political decision. In our opinion, the endangerment or not of a species is a question of fact, not politics. As the Governor General will decide which species shall be listed, there is a real likelihood that economic expediency will be placed before the objective of sustainable biological diversity. Biological diversity has enormous significance for first nations. Every species plays a role in making the environment what it is. The loss of one species affects everything that is left. Many aspects of first nations lives are so connected with the environment that the loss of a species can disrupt subsistence, culture, spiritual practices, and communal life. These essential elements of first nations life cannot be left to the vagaries of Canadian politics. It is recommended that the bill be amended to remove the Governor in Council's discretion to list species, as in clause 27, and instead provide that all species assessed by COSEWIC will be listed.

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As to the protection of residence or critical habitat, the minister has spoken of the need to address the issue of endangered species with a holistic ecosystem approach. This approach is in accordance with first nations traditional understanding of the interconnectedness of all things. Protection of the particular animal, fish, bird, or plant alone will not guarantee the survival of the species. It is not possible to divorce the species from its preferred surroundings and expect it to survive. However, the codes of practice, national standards, or guidelines with respect to the protection of critical habitat are at the discretion of the minister, and any protection of critical habitat and the amount of critical habitat to be protected is at the discretion of the Governor in Council. We are concerned that in the absence of mandatory protection, the identification of critical habitat, as with the listing of species, will become a political issue, subject again to the vagaries of political partisanship.

We urge the committee to reflect upon the need for mandatory protection of not only specific dwelling-places, but also critical habitat. It is recommended that the bill better reflect the intention of the Convention on Biological Diversity and provide mandatory protection of critical habitat.

As to the involvement of first nations governments, first nations hold aboriginal title to large portions of this land, particularly in British Columbia, the Atlantic provinces, and Quebec. We have treaty rights to pursue traditional activities, the exercise of such rights being dependent on a healthy environment. Furthermore, we have responsibilities under legislation, such as section 81 of the Indian Act, and modern treaties regarding the protection, conservation, and management of the environment. Finally and most importantly, we have a sacred duty to the Creator as caretakers of the earth. First nations have a strong vested interest in addressing environmental issues in this country. Furthermore, we argue that the federal government, in addition to meeting its legal and policy obligations, has much to gain by including first nations in the decision-making process.

Including first nations in the early stages of development and implementation of legislation such as SARA allows the federal government both to acknowledge its duty to consult first nations and to mine a rich source of knowledge about wildlife and how best to live in harmony with the environment. We take the Minister of the Environment at his word when he expresses an interest in working cooperatively to address endangered species on an ecosystem basis. We applaud this holistic approach and its recognition that all things are interconnected. We are encouraged by these words and have sought verification of this intent in the draft bill.

At a minimum, the bill must contain express commitments for consultation with first nations peoples, organizations, and governments and the involvement of first nations governments in the development and implementation of the legislation. Unfortunately, upon review of the draft legislation, we are disappointed in this. Furthermore, the wording has the effect of failing to recognize or acknowledge the self-governing powers of first nations with self-government agreements and/or land claims agreements. These agreements not only set out the first nations' law-making powers on settlement land, but also set out the first nations' abilities to displace territorial laws of general application.

There are also concerns regarding the reference to wildlife management boards. It is not clear from the legislation which boards would be involved, how they would serve the purpose proposed by the bill, and when and how they would be consulted. The AFN recommends that the bill be amended to include explicit recognition and involvement of first nations' governments in further development and implementation of the legislation and regulations. Furthermore, references to wildlife management boards and to details of their involvement should be clarified.

On consultation, the AFN would like to take this opportunity to thank Minister Anderson and his staff for the efforts they took to involve first nations peoples in the review of the legislation prior to tabling it in the House of Commons. We were pleased to have had an opportunity to provide comment on the draft bill and to participate in the work of the aboriginal working group. That said, please be advised that in the opinion of the Assembly of First Nations, the discussions which took place prior to the submission to the House do not constitute consultations.

Furthermore, provisions in the bill for future consultations with first nations governments, organizations, and peoples are insufficient. For example, paragraph 27(2)(c) requires consultation respecting the listing of species at risk with wildlife management boards. The policy and legal directives with respect to consultation for which the federal government is responsible in implementation are much broader than this. We note Supreme Court of Canada decisions such as R. v. Sparrow, Delgamuukw v. British Columbia, and R. v. Marshall, which outline the federal government's legal responsibility to consult with first nations where federal action has the potential of affecting first nations interests.

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We also note the consultation provisions of self-government agreements such as the Yukon Umbrella Final Agreement, which states that government shall consult with Yukon first nations prior to taking action which may affect the Yukon first nations' management responsibilities or harvesting rights.

It is recommended that the provisions mandating consultations with affected first nations' governments, peoples, and organizations as approved be included in at least the following places: subclause 2(4); clause 27; clause 21; subclause 29(1); paragraph 39(1)(d); paragraph 49(1)(d); clause 57; clause 65; subclauses 80(2) and 80(3); and subclause 85(2).

Furthermore, first nations expect full and proper consultation on this bill. This includes respect for powers flowing to Yukon first nations under their land claim and self-government agreements. This bill directly affects our interests, and we expect to be accorded the opportunity required by law to address its development and implementation.

There's a non-derogation clause. The federal government has fiduciary relations with first nations. Part of that responsibility is ensuring that federal legislation does not infringe on aboriginal and treaty rights. While conservation concerns that have been cited by the court have taken priority, efforts must nevertheless be taken to ensure any infringement on aboriginal and treaty rights is as limited as possible.

However, the language contained in clause 3 of the bill, the non-derogation clause, is not acceptable to the Assembly of First Nations. The Assembly of First Nations recommends that the language of clause 3, the non-derogation clause, should more closely follow the language contained in section 25 of the Constitution Act of 1982.

Then there's the traditional knowledge. The recognition of traditional knowledge in the proposed bill is welcomed. It is evidence of growing awareness in Canada of the legitimacy of aboriginal philosophy and traditions. It is important to note that there's a tremendous variety in aboriginal traditional knowledge. Much of it grows out of the understanding of local conditions.

The provision for a subcommittee on traditional knowledge of COSEWIC is welcomed, as is the inclusion of a member of a subcommittee on COSEWIC, owing to the variety of traditional knowledge. However, the inclusion of only one member is insufficient. It is recommended that there be participation of more than one individual on COSEWIC from the subcommittee on traditional knowledge. It is suggested that the minister consider making provision on COSEWIC for adequate representation, taking into account not only the diversity among aboriginal peoples, but among first nations' peoples as well.

As to administration of the act, the Minister of Indian Affairs and Northern Development is responsible for the management of reserve lands. The Minister of IAND is also responsible for the general protection and support of first nations. Environment Canada suggests that 40% of endangered species in Canada live on reserve lands. For the purpose of this bill, the responsibilities of the minister of IAND with respect to reserve lands could be considered as comparable to those of the Minister of Canadian Heritage with respect to national parks, national heritage sites, and other protected areas. The AFN recommends that the minister for IAND be listed as the responsible minister for implementation of the act.

Then there's the compensation. The bill prohibits destruction of lands determined to be critical habitat. Provision is made for compensation where losses are suffered as a result of an extraordinary impact where the lands are deemed to be critical habitat. There are two issues of concern to first nations in this regard.

First, there is the considerable concern within first nations that this bill could be used as yet another means for the federal government to curtail the economic opportunities of first nations. As noted earlier, first nations have demonstrated respect for the environment and its careful stewardship as evidenced by the fact that 40% of the endangered species live on reserve lands. There is a concern that non-aboriginal peoples, having carelessly destroyed the biological diversity of lands taken from first nations, will now insist that first nations bear the burden of protecting what remains.

As caretakers of the earth, first nations understand their responsibilities, but compensation likely demanded in the form of land must be made to allow first nations to pursue their other legitimate objectives.

Second, many promises of compensation to first nations have been made in the past. Many promises remain unfulfilled. First nations have a long and unhappy history with respect to the taking of land and compensation. The first nations of British Columbia, for example, have not had satisfaction for occupation of lands for which they continue to hold aboriginal title. There are many outstanding specific claims against the government for illegal taking of lands that rightfully belong to the first nations.

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It is recommended that the bill provide for a consultation with first nations with respect to development of regulations under subclause 64(2). It is further recommended that the minister consult with first nations with respect to the further development of compensation provisions.

In conclusion, I'd like to say that the creation of the bill is generally applauded. First nations have since time immemorial understood and taken steps to protect our animal and plant life from extirpation or extinction. We are pleased to see the government recognize aboriginal traditional knowledge and provide opportunities for the sharing of this knowledge.

However, it is the position of the AFN that amendments to the bill are necessary to better reflect a commitment to a holistic ecosystem approach that embraces the concept of sustainable development. The Assembly of First Nations also recommends that the legislation better reflect the fiduciary relationship between the federal government and the first nation peoples of Canada and the rights of first nations peoples so as to avoid conflict and to ensure that all wildlife is accorded protection and respect.

Owing to the fact that very little time was available to aboriginal peoples to present their concerns to the committee, I have limited my remarks to address only a few of the issues of concern to first nations. I encourage the committee members to take the time to review our written brief. I would like to thank you for listening, and I would be happy to respond to any questions that you may have.

Thank you very much.

The Chair: Thank you, Grand Chief.

I would like to take this opportunity to congratulate you on your successful trip downstream along the Hudson River. It seems almost a hundred years ago, but it was roughly ten years ago. My recollection is only limited to carrying a canoe with you and a dozen other characters from the plane to the canal before you departed for New York. That was a terrific initiative which was crowned by success. I haven't had the chance to congratulate you since then, so I would like to do it now.

Mr. Knockwood, would you like to speak on behalf of your congress?

Mr. Jason Knockwood (Vice-President, Congress of Aboriginal People): Yes, thank you. Good afternoon, Mr. Chairman and members.

The Congress of Aboriginal People is a national political organization designed to serve and protect the interests of its aboriginal constituents—namely Métis; Indians, registered and unregistered; and treaty and non-treaty persons of aboriginal ancestry living off reserve. We constitute and represent the largest group of aboriginal citizens in this country.

In signing the Biodiversity Convention in 1992, Canada committed itself to develop and maintain necessary legislation to protect threatened species. We fully understand the desire of the government to fulfil its promise of 1992, and we wish to be supportive of the process. Along with all Canadians, we endorse the creation of endangered species protection and recognize the urgency of protecting species at risk.

We must make sure that we have a law that does not infringe on the rights of aboriginal peoples. We have had the opportunity to review Bill C-5 and participate in an aboriginal working group. However, the timeframe has been too tight to undertake this important work, and there need to be grassroots consultations within our constituency.

Bill C-5 invokes key issues for aboriginal peoples. We can take nothing for granted, and we must ensure that the legislation fully protects the interests of our peoples. The legislation will have a major impact on aboriginal peoples. It will infringe on our constitutional treaty rights to harvest, fish, hunt, and occupy land.

Unfortunately, the legislation contains a series of gaps which, when seen together, draw into question the validity of the entire bill. A bad law is just as bad as having no law. Our peoples have learned through bitter experience to be wary. Fulfilment of aboriginal rights and comprehensive claims by the Government of Canada must come before anything else. We demand nothing more, and we expect nothing less. The reality is that most endangered species are found on traditional aboriginal territory, and the reason this is so is because of our traditional practices.

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A world conference on science stated that traditional systems of inquiry are a legitimate science. Scientists are hostile to traditional knowledge systems.

Our vision of a traditional knowledge committee was that it would hold equal status to COSEWIC. We did not envision this body to be a subcommittee of COSEWIC, but rather a body existing in parallel to COSEWIC. It is important that traditional knowledge have the equivalent status of COSEWIC.

We have not been allowed the opportunity to hear from traditional knowledge experts ourselves. Our proposal to host a gathering of traditional knowledge holders was rejected.

We have heard the Canadian Wildlife Service make reference to seven species at risk identified by traditional knowledge holders. Since we have not approved any process using traditional knowledge, we do not know how this list was created. COSEWIC is rushing through a list of endangered species, and aboriginal traditional knowledge has not been properly considered.

David Suzuki, in his book Wisdom of the Elders, said that aboriginal peoples' relationship with other life forms comes from a deep respect.

Bill C-5 is a product of a viewpoint in which society is at the centre of all things. Bill C-5 fails to recognize the federal fiduciary responsibility for all aboriginal peoples, regardless of where they live or their status.

Canada's constitutional authority is limited by the recognition and affirmation of existent aboriginal and treaty rights in subsection 35(1) of the Constitution Act, 1982. The justification test for infringements of those rights is found in the Sparrow case. When Bill C-5 is implemented, the crown will need to satisfy the Sparrow test, which requires that there be as little infringement as possible.

The Supreme Court of Canada's landmark decision in Delgamuukw established a new consultation benchmark. There are also other significant Supreme Court decisions, which Matthew has mentioned in his statement.

There is no definition of “consultation” in Bill C-5. It is unclear where Canada's constitutional authority ends and the provinces' authority begins. The exact dividing line where federal and provincial authority for regulating endangered species begins and ends is unclear. We are concerned about the offloading of the federal fiduciary responsibility to the provinces regarding the day-to-day implementation of the act.

It is important for aboriginal peoples to participate in the workings of the Canadian Endangered Species Conservation Council. This body is responsible for providing national leadership and direction. As the bill now stands, the aboriginal voice is restricted to a subcommittee of COSEWIC. Aboriginal peoples will need to turn to the courts to protect our individual and collective rights as nations.

At this point, there is no reference in Bill C-5 to a compensation program for aboriginal peoples, but we understand it will appear in the regulations. There is provision for the minister to pay compensation due to extraordinary impact. There is no definition of the word “extraordinary”. In Bill C-5, there is no reference to a dispute resolution process.

We know blind support of this legislation will cause harm. Clarity is a big issue. With Bill C-5, we believe everyone here today would agree that clarity does not exist in the bill. We agree with you that language is important.

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We recognize that there is considerable international pressure on Canada to enact endangered species legislation. Some progress has been made towards recognition of aboriginal rights in Bill C-5; however, there is still a long way to go.

[Witness speaks in his native language]

Thank you.

The Chair: Thank you very much, Mr. Knockwood.

The Métis National Council is represented by Bob Stevenson and Mr. Lipinski.

Mr. Lipinski, would you like to proceed?

Mr. Bob Stevenson (Métis National Council): I'm his left-hand man today.

Mr. Garry Lipinski (Co-Chair (Ontario), Métis National Council): Thank you very much, Mr. Chairman, ladies and gentlemen, committee members.

On behalf of the Métis National Council, as represented by our national president, Gerald Morin, I'll offer some comments and give you the Métis Nation perspective.

First of all, I'll begin with some introductions. Of course, I am Garry Lipinski. I'm a Métis person from northwestern Ontario, an historic Métis community, one of the unique communities in Canada, a Métis community that signed a treaty before Canada was Canada, an adhesion treaty—Treaty 3. We have a Métis adhesion called the Rainy River—Rainy Lake Métis Halfbreed Adhesion. My political position is chairman of the Métis Nation of Ontario. In this particular case, I've been asked by the Métis National Council to represent our views.

I'm joined here by a colleague, Bob Stevenson, who is also a Métis person, born in northern Alberta, the Northwest Territory area, Fort Smith. Bob works with the Métis National Council on its environment and natural resources committee. He has been very active in the aboriginal working group on SARA. He also lives in Akwesasne and works on economic development for the Mohawk Council of Akwesasne.

I think you were presented ahead of this meeting with a document, a brief, outlining our presentation. I should announce that it was an initial document. There is a document that has some revisions in it, and it will be circulated following my presentation. It was not circulated ahead of time, because it hasn't been translated. So I'd like to apologize for that in advance and let you know that we'll provide you with the document that I will be reading from, following my presentation.

Once again, I'd like to thank the House standing committee for inviting the Métis National Council to appear before you in your review of Bill C-5, the Species at Risk Act.

As a little overview of the Métis Nation, in 1983 the Métis Nation formed the Métis National Council, MNC, as the modern governing authority for the Métis Nation. As you are aware, the Métis are recognized as a distinct people with aboriginal rights under subsection 35(1) of the Constitution Act, 1982. The MNC consists of five governing members: the Métis Nation of Ontario, the Manitoba Métis Federation, the Métis Nation of Saskatchewan, the Métis Nation of Alberta, and the Métis Provisional Council of British Columbia. The board of governors consists of democratically elected leaders of these governing member nations. Each governing member has a regional structure and a network of community-based locals. As an important note, all levels of government throughout the Métis Nation are democratically elected through a ballot-box election process of its constituents.

According to the 1996 census data, there are over 210,000 Métis in Canada, representing 26% of the aboriginal population. There are over 300 Métis communities throughout the homeland.

The Métis National Council has been an active participant in the aboriginal working group reviewing the proposed Species At Risk Act on an ongoing basis. The Métis National Council is supportive of the process at hand to improve the proposed act. We support the initiative to secure a safe and vibrant future for all wildlife species in Canada. It is our duty as Métis people to oversee and respect the environment. As such, we share responsibility of joint stewardship to ensure a healthy and sustainable environment for all.

The Métis Nation has a wealth of knowledge regarding environmental issues at community levels across the homeland. Métis people have much to offer—historical information, fluctuation patterns, migratory patterns, and so on, as well as the impact that current situations have created on ecosystems. Because many of us still live close to the land, we have firsthand knowledge—we live in it—about the species at risk or those species that are vulnerable within the environmental ecosystems.

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We have some specific concerns with regard to the bill, particularly around COSEWIC and the traditional knowledge committee. MNC is encouraged about participating in the process of using aboriginal traditional knowledge to make decisions relating to the protection of species at risk and their critical habitat. In the proposed act, the Committee on the Status of Endangered Wildlife in Canada, COSEWIC, is required to maintain a subcommittee on aboriginal traditional knowledge, and the chairperson of that subcommittee will sit as a member of COSEWIC. However, there is no specific wording in the legislation to ensure that it is an aboriginal person who will sit on the subcommittee and who is selected as a COSEWIC member. This is in spite of the bill's clear intent. As revealed through the dialogue that took place at meetings of the aboriginal working group, this inconsistency must be reconciled.

The intent of the proposed act, as stated in the preamble, is that the traditional knowledge of aboriginal people is to be considered. The current wording of its operative section, however, leaves it open for non-aboriginal people to sit on the traditional knowledge subcommittee of COSEWIC.

Currently, non-aboriginal scientists who have studied aboriginal traditional knowledge can provide the information that would satisfy the current subcommittee requirements. It is our recommendation that the selection process for the subcommittee, under clause 18 of the bill, be amended to clearly state that constitutionally recognized aboriginal people, as represented by their respective nation governments, present candidates to COSEWIC to sit on the aboriginal traditional knowledge subcommittee, and that COSEWIC must choose the members of the subcommittee from that list. I understand that COSEWIC supports this recommendation.

Another area of concern for Métis people in Canada deals with the issue of consultation. The proposed act sets up a consultation process that includes some aboriginal peoples. However, the process, as it is currently designed, will specifically exclude the Métis from the consultation process.

For example, subclause 27(1) authorizes cabinet to establish a list of wildlife species at risk as recommended by the minister. There are certain preconditions for the minister's recommendations, one of which is to consult with wildlife management boards if the species is found in their area. This clause fails to include consultation with Métis governments, Métis communities, and Métis wildlife boards.

As you likely are aware, the courts are now recognizing the reality that Métis people continue to hunt and gather throughout their homeland, as we have done for generations, predating the assertion of British sovereignty. There's the Powley decision, in which the highest court in Ontario has ruled that Métis are a people equal to other aboriginal peoples, as entrenched in the Canadian Constitution Act of 1982.

The court has also ruled that there is a Métis right to hunt and fish for food. The court has ordered the Ontario government to adjust its regulatory scheme through consensual negotiations to respect that Métis right. The case is now being appealed to the Supreme Court, and the Ontario government has been allowed a one-year stay of the decision to allow for negotiations and the implementation of that right.

There are other cases throughout the homeland that support those rights—for example, the Buckner case in Ontario; the Morin and Daigneault case in Saskatchewan; the Ferguson case in Manitoba and Alberta; and the recent Howse case in British Columbia. Case law making its way through the Canadian court system is recognizing our right of access to use traditional lands for hunting, fishing, and gathering.

We also have land claims cases in Saskatchewan and Manitoba. As well, the Métis have been identified in Treaty 3. Métis people can validly state that we have specific land use areas. We're very concerned with the notion that the bill allows for listing of wildlife species at risk without consultation in regard to species found in our traditional homeland.

Many other sections of the proposed act contain the same exclusionary wording.

First, for instance, subclause 34(4) deals with general prohibitions.

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Subclauses 58(5) and 58(6) include consultation of band councils and wildlife management boards before the application of prohibition in clause 58 but do not allow for consultation with Métis.

Subclauses 59(5) and 59(6) include consultation of band councils and wildlife management boards before making the regulations on federal lands but do not allow for the consultation of Métis.

Subclauses 74(4) and 74(5) include the consultation of band councils and wildlife management boards before authorizing a person to engage in an activity affecting listed wildlife but do not allow for the consultation of Métis.

The Métis want to be full and active participants in all areas in the proposed act at hand. We have recognized lawful, specific land use areas, and therefore we have a duty as joint stewards to be consulted during the application of this act in our traditional territories.

The MNC therefore recommends that the act be amended to address this concern and adequately ensure an equal and fair consultation process for Métis.

On the issue of compensation, the proposed act, under the compensation section and its regulations, must recognize that many of our people still live traditional lifestyles which are directly related to their land and resources. Currently, compensation is only triggered to provide monetary compensation for private and corporate landowners. Métis communities and individuals must have access to fair compensation for losses suffered, or access to resources denied, as a result of mechanisms designed to ensure the survival and/or recovery of any wildlife species.

In conclusion, I'd like to thank you for listening to the presentation and considering our requests for amendments to the act, and I'm sure we'll be open for questions, as are our fellow colleagues.

Thank you.

The Chair: Thank you, Mr. Lipinski, for bringing the Métis perspective to the table and for doing it so concisely.

We're now ready for a round of questions. We'll start with Mr. Forseth.

Mr. Paul Forseth (New Westminster—Coquitlam—Burnaby, Canadian Alliance): Thank you very much, Mr. Chairman.

There is a general theme that I've heard in committee and in other places. This general theme of science versus traditional knowledge is repeated often—what that will actually mean, and how those two things will actually alter or limit what happens on the landscape. Now, I'm not talking about traditional knowledge as defending a constitutional right or a legal precedent, but the issue of actually what happens on the land. So it's beyond that, and I want to talk about the criticism that I've heard about what traditional knowledge means in behaviour in the field.

Some have said that really what traditional knowledge is saying is that it knows better than science about the stoppage of the taking of certain animals or disturbing the landscape through travel, through burning of the landscape, or construction of dwellings, and so on. So it's been said that the defenders of traditional knowledge are really saying that they don't want to stop certain bad practices just because science says so, because traditional knowledge knows better. Therefore, it should not be subject to the rules and limits that apply to everyone else under the scientific conclusion.

So I want you to help me out, and of course this is a public forum, so it's an opportunity for you to explain to the public at large and respond to that perception that the defenders of traditional knowledge are somewhat high-minded. So explain here on the record why so-called traditional knowledge is wiser or not wiser than science, and that it should be preferred over science when the two are in conflict.

Now some have said that traditional knowledge must be incorporated as part of the scientific gathering process as we move towards a conclusion of what should be done on the landscape to protect something. But some of the other proponents of traditional knowledge are actually saying that it's to be preferred over science. Then the criticism comes back and says that this is the safe position for those to just continue to do what they always did—to defend bad practices.

So can you see the conundrum that I'm in here and the misperception that may be out there in the community? There are various groups here who come and maybe alleviate that misperception about science versus traditional knowledge and what that really means as far as the landscape, not necessarily as a constitutional question.

The Chair: Who would like to answer?

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Mr. Jason Knockwood: One of the first comments I'd like to make is that I haven't met a traditional knowledge holder who practises bad practice. There are aboriginal people, along with the non-aboriginal society, who do and may and can endeavour in illegal activities that are endangering other species and environment.

The traditional knowledge holders we refer to are ones who live off the land from generation to generation, trapping, collecting medicinal medicines, and so on. You cannot begin to comprehend the intense knowledge that these traditional knowledge holders have by reading a book or by spending a little bit of time in the field collecting data. When you take hundreds and thousands of years of knowledge handed down and taught from generation to generation, and learning the cycles that the creator has given our environment and wildlife....

In some aspects I will agree that traditional knowledge may be held more closely than scientific knowledge, but in other cases also, where technology is not accessible to some of our traditional knowledge holders, there may be some scientific evidence that would dispute what the traditional knowledge holders are saying. To keep an open mind is the key—not to criticize the scientific world, and not to accept criticism from the scientific world, and vice versa. It's got to be something that's agreed upon, and it's not something that is minor to the aboriginal people.

The Chair: Who's going to comment?

Grand Chief Matthew Coon Come: Thank you very much, Mr. Chairman.

My grandfather is 110 years old. His father was 115 years old. His grandfather was 130 years old. They're people who live off the land. They can tell you that the animals are the greatest indicator of the health of the land. They have walked the land. That is not to say that the scientific knowledge is no better than traditional knowledge, because they would know exactly the behaviour of the animal. They would know exactly the habitat we are talking about, the critical habitat we're trying to protect. They would know exactly the behaviour of those animals that are out there.

This is a history that's been passed on from generation to generation. It's not a question of whether it's wiser, whether scientific knowledge is better, that they know more, or whether traditional knowledge is lesser than scientific knowledge. I think it's a question of involving people. You elected representatives say you represent people. It's certainly involving the people that are directly affected, whose livelihood is affected, where 40% of the land we're trying to protect is on first nations lands, and certainly the majority of those people are people whose livelihood is off the land.

Certainly their knowledge should be recognized, and certainly the decisions of law that came down from the Supreme Court recognize the importance of oral tradition. I guess the challenge that is before us is how do you integrate that into land use plans or protection of national parks, where there's an infringement on aboriginal title? There's an infringement on trying to protect a critical habitat because of a specific species, and therefore you're having an impact on a right of an individual.

Certainly one should involve the one that is directly affected, ask him what he thinks, and incorporate his knowledge into the so-called scientific knowledge that is out there. Again, it's not a question of one is wiser or one is lesser than the other. I think all of us know the importance of involving people. We're talking about lives of people here; we're talking about affecting a livelihood.

Certainly I think there should be no exception. If you affect the farmer, then you should at least talk to that farmer about his land and how if affects him if you're going to have some servitude across his land. I think that's what we're calling for, and I think that our presentations are very clear.

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I think there's a general agreement in your laws, in decisions of the court, in records of oral tradition, and I think the testimony that has been given by our people should be taken into consideration.

The Chair: Thank you, Mr. Forseth.

Monsieur Bigras, followed by Mr. Comartin, Mr. Reed, Madam Redman, Madam Kraft Sloan.

[Translation]

Mr. Bigras.

Mr. Bernard Bigras (Rosemont—Petite-Patrie, BQ): Thank you, Mr. Chairman. I thank you for the opportunity to take part in this meeting.

My first question is for Mr. Knockwood because I want to make sure I understand what he just said. If I understood him correctly, he is disappointed by the fact that in this bill the federal government devolves its responsibilities to the provinces. Is this what you said, Mr. Knockwood?

[English]

Mr. Jason Knockwood: Yes. When it comes to enforcing the act, it's going to be done by the provinces. It has to be adopted by the provinces, if I understand it correctly, and agreed upon and accepted. To this day, we don't know where the provinces stand with this legislation.

[Translation]

Mr. Bernard Bigras: Thank you.

My second question is for Mr. Coon Come. When I read your document, it says very clearly that the bill does not recognize the self-government powers conferred to First Nations by certain self-government agreements. Why do you say that what is good for aboriginal nations is not good in the case of the Quebec nation?

[English]

The Chair: I'm not sure that the quesiton addresses what is before us, Monsieur Bigras.

Mr. Matthew Coon Come: It's a political question. If you want to get into that, Mr. Chairman, we can gladly go into it.

The Chair: Let's keep it compressed, please.

Mr. Matthew Coon Come: I think our point here is that there are land claims agreements. There are modern land claims agreements like the James Bay and Northern Quebec Agreement. Within those agreements there's recognition of certain boards that have been established. Within those agreements, like under the Cree-Naskapi of Quebec Act, there are certain pieces of legislation that give authority and powers, for instance, to environmental officers.

You have certain jurisdiction and powers that are recognized. Certainly it should also be recognized in this act that under the agreements there's a certain recognition of powers that have been given and that those are not taken nor have been abrogated because of certain legislation that is in place. There has to be some kind of compatibility with those powers that are recognized for the management of certain lands, whether they're classified as category one lands or classified as reserve lands, or classified as just plain land claims settlement areas, because you have jurisdiction over those areas, jurisdiction over certain hunting and fishing areas. I think you have to take that into consideration.

I won't get involved in the political end of it. I don't think that's the point here.

[Translation]

The Chair: Mr. Bigras, you have the floor.

Mr. Bernard Bigras: Mr. Chairman, I will ask the same question as Mr. Knockwood.

Is it not legitimate for the national government of Quebec to want to implement its own legislation on endangered species, its own act on wildlife conservation and its own fisheries regulations?

I fully agree with the statement in Mr. Coon Come's brief. There is a right of peoples and nations, first of all, to govern themselves, there is a right to self-government, and from that follows a right to implement their own legislation and provisions on their territory.

[English]

Mr. Jason Knockwood: I think one of the biggest things we have to understand is that the aboriginal people have a constitutional right. It's not a right handed down or even bargained or traded from government to government. It's an inherent right, a right to govern ourselves and a right to agree and work on legislation such as this from government to government.

• 1620

So do I believe other provinces such as Quebec have a right to regulate and enforce or implement their own laws and regulations? Yes. But the aboriginal people also do. And in the process all these factors have to be considered. But one thing still remains the same by the end of the day, which is that the aboriginal people have a right protected under the Constitution.

[Translation]

The Chair: Thank you, Mr. Bigras.

[English]

Mr. Comartin, please.

Mr. Joe Comartin (Windsor—St. Clair, NDP): In all three of the delegations there's been a bit of frustration, which I guess we most identified yesterday when we heard from delegations from the northern territories.

Have any of you had consultation, negotiations, or discussions with either the Department of the Environment or Department of Justice over the jurisdictional issues you've raised?

In the case of the Métis Nation, there would be the concern that you aren't even mentioned in the legislation or recognized in the legislation. Has there been anything from the justice department? And I'd ask the same types of questions over the issue of the derogation clause, etc.

Could I hear from each of you in that regard?

Mr. Garry Lipinski: Certainly not to the level or extent that we need, want, and demand. The only opportunity we've been afforded to raise our concerns would be in the aboriginal working group that has been working on the SARA committee. And I think there's a common theme you've heard from the three presenters who have spoken here. In particular, Mr. Coon Come talked about our concerns raised about the standard derogation clause, where we want the recognition of our aboriginal and treaty rights specified. And there was almost a wall whereby they would not move on certain issue.

So in a sense, no, we haven't had adequate opportunities to explore those ramifications.

Mr. Jason Knockwood: I'll refer your question to Phil Fraser.

Mr. Phil Fraser (New Brunswick Aboriginal People's Council; Congress of Aboriginal People): Thank you.

Something we have always wanted to do is to have that discussion with the justice department or anybody else. But the bottom line is we've been looking to try to have a consultation even with our own people to talk about some of the implications here.

Now that the bill is before us we haven't even had an opportunity or been able to afford to have our lawyers look at it and understand how we're going to be impacted if this bill goes through in its present format.

Anyway, we're greatly concerned about that. And we hope we can have that dialogue some day, but at this point I think, as our colleague said before, there seems to be a wall in place that we can't move beyond because there's not the recognition of those of us who unfortunately don't reside on reserve or aren't covered by the Indian Act.

Mr. Joe Comartin: There have been two prior versions of this legislation. The first was significantly different from the one we have now. And then in the last session there was one that was fairly similar, if not almost identical. Was there any discussion at that point over the issues you've raised today and in your briefs?

Mr. Jason Knockwood: In the past, the opportunity we did have to review the bill where we did have some legal advice was in an aboriginal working group. As far as the Congress of Aboriginal Peoples goes and is structured, the way we prefer to conduct such important agendas is to consult with our grassroots people and allow them to have the opportunity to review it, whether it be legally or morally. And we haven't had that opportunity in any one of the bills that have been tabled.

Mr. Joe Comartin: Let me express to you—and I think I speak for most of the committee—our concern that a bill has been outstanding for a good number of years. I think there's a great expectation within a number of sectors of the country of wanting this legislation to go ahead, or legislation to go ahead, to deal with species at risk.

From what I'm hearing from you, and again what we heard yesterday, if the consultation process went on there would be a significant delay in this legislation going ahead. And by that I'm thinking as much as several years. Is that accurate? And do you want the legislation delayed that long?

• 1625

Mr. Jason Knockwood: No. As an aboriginal person, my background is as a conservation officer in Prince Edward Island. I was part of the “Adopt an Eagle” program, so I climbed the trees and I banded the baby eagles. The wildlife and species, not only as an aboriginal, but as part of my career and part of my life, I hold very dear.

The purpose of the legislation is great. It's just a sad day when we need legislation to protect endangered species, but it's totally understandable. We don't want it delayed—we wish it could have passed last time—but we have to be wary of the impact on our grassroots people, the ones who aren't sitting here today. What are their concerns? What are the issues that are dear to them?

In certain situations and certain cases—look at the Sparrow test case—if the aboriginal population were to exercise their treaty or rights on a species that was being protected, though the aboriginal people weren't hurting that population at all, then there would have to be an opportunity for us to sit down with the scientists, with the traditional knowledge-holders, to come up with a formula, asking whether we, the aboriginal population who are exercising our right to hunt this species in this area, really having an impact. If it were a general population hunting that species in that area, you would probably find a significant difference from the aboriginal population.

There's going to have to be a determination somewhere along the line—is it endangered, is it threatened by the entire population, the aboriginal population, and everyone else? The example I would like to use is the Atlantic salmon in Prince Edward Island, because I'm very familiar with that. The Atlantic salmon stock in Prince Edward Island is very low. But if the aboriginal people were to fish every day, they wouldn't hurt that population, given the number of aboriginal people who fish Atlantic salmon. If, however, you took the number of Atlantic salmon licences the province sells, which is around 3,400, and if their holders fished the Morell River, yes, that population would be hurt. So at a certain point, the way this bill is written, when you say the Atlantic salmon is now on an endangered species list, does it meet the Sparrow test, where it's conservation, aboriginal people, commercial, and all other users?

The Chair: Grand Chief Coon Come.

Grand Chief Matthew Coon Come: If all our concerns had been addressed, I suppose we would not be here. We participated in a council of ministers. We've had a meeting with Minister Anderson to convey our concerns and views.

One of the problems of any legislation that is enacted by Parliament, and more particularly regarding the first nations, is that once it is passed, there's still a continuation of regulations that are contemplated will be drafted, and those regulations sometimes have more impact. If you're talking about 40% of land that you're trying to protect, then it is only right that you should involve the people who are directly affected. That is why we are recommending as a national organization that you amend, so there can be explicit recognition and involvement of first nations governments in the further development of legislation and regulations. Don't just call us up right now to state our views—if then we leave here, are you going to pass the legislation and assume that all is well?

We agree there should be some form of national standards that have to be developed, because you need an umbrella to ensure there is a protection of what we are trying to do on critical habitat and endangered species.

• 1630

At the same time, I think that before that happens, it is important that in areas where we have exclusive jurisdiction, which has already been recognized by the courts, we as first nations be allowed to develop our own forms of conservation. But we'd have a national standard that would be a gauge. In the area I'm from, in the past we imposed a rule that people would not trap beaver. That was in the 1940s, the 1950s, and into the early 1960s. It was self-imposed because we recognized that our livelihood would be affected if we didn't allow the animals to go. So we have done that.

What I'm concerned about is that once the consultations are finished and you proceed with the legislation, you'll say you consulted us, thank you very much, and you'll proceed to exclude us from participating in the development of the regulations, which I've contemplated.

The Chair: Mr. Stevenson, would you like to make a brief comment?

Mr. Bob Stevenson: All I want to point out, Mr. Chairman, is that this is the first piece of legislation over the years where we've had an opportunity to bring our lawyers in to work on it with the government lawyers. Mind you, some of our recommendations with regard to the legislation were not accepted by the justice department. All I want to say is that was our first opportunity, and we were glad to be involved. We're always trying to make sure we are included, such as by attending the meetings of the aboriginal working group on SARA. Earlier I said that we're glad to have our lawyers. We'd like that type of thing to continue, and we'd like to strengthen the legislation. That's why we're here today. As Matthew said, the reason we're here today is to try to get amendments to make sure we are included more.

The Chair: Thank you, Mr. Stevenson.

Mr. Bill Lightbown (United Native Nations, Congress of Aboriginal People): I'd like to respond to the actual question that was asked. The question was phrased in a way that suggested we've had ample opportunity to deal with this issue because this is the third time around for this very legislation, which is so important to all Canadians.

I want to emphasize the fact that this legislation is extremely important to the aboriginal people who are still living in the field. Our people are still out there. For those of our people who are not living within their own territory, I can assure you that if you ask those people where they would like to be, they will tell you that they would like to be back within their own territory. Our people are very attached to where they come from. That's part of who and what they are.

I want to say at this particular point that the suggestion has been made that we've had ample opportunity to be able to deal with these issues. In fact, we've never had the necessary resources for our people to become involved in a meaningful way in this whole discussion. Of all the people in this country who are going to be affected by this legislation and the important decisions that are made here by all of you, our people are going to be more affected than any other identifiable group in Canada. There is no question that our people will be affected by whatever decisions we make here today. Up until now we have not had a proper opportunity to provide input into the decision-making.

There also was a mention of the difference between traditional knowledge and the fact that our presentation had only addressed our legitimate legal right to be involved in the decision-making. You cannot separate the two. In fact, our legal rights are every bit as important to us as all of the traditional knowledge we have and how we go about making these decisions that are going to be imposed upon all Canadians, particularly our people.

Thank you.

The Chair: Thank you, Mr. Lightbown.

Next is Mr. Reed.

• 1635

Mr. Julian Reed (Halton, Lib.): Thank you, Mr. Chairman.

Chief Coon Come, you advanced a position on the COSEWIC list. That's a debate in which we've been hearing from both sides on whether the COSEWIC list should be discretionary or non-discretionary. We have a problem with it. Maybe you can give us some advice. Species don't recognize political boundaries but COSEWIC does. As a result, we have situations at a political border. I'm thinking of evidence we heard where a species of bird would be seen rarely in Canada but would not be endangered in the United States. I can think of an anecdote with regard to a particular species of fish that is found rarely this far north but is plentiful farther south. How do we resolve that? How do we deal with that if you want to make that list non-discretionary?

Grand Chief Matthew Coon Come: That's one of the greatest challenges that even a hunter knows, especially for migratory birds. You can protect your own area and you can limit yourself as to how many you hunt, but you have no control over the area they come from. That makes it very difficult.

But I think there are certain species that are identifiable within a given area. I think the migratory birds are out of the question. But when you talk about specific species that I know of, whether it be otters, mink, or beavers, these are animals that are more in a given area. They migrate a lot and they travel through many routes. They may be affected because of some activity that has happened somewhere, such as building a dam and diverting the flow or clear-cut operations taking place, because that's its travel route. It makes it very difficult

But I do think that when you involve the hunters, the trappers, the people who are directly affected, we at least can agree on something so that we're able to protect a given area because you recognize that it's a specific migration route.

If you were to come with me on the land, I could show where the otters migrate. They follow a certain route. I can show you where beavers migrate. They don't just migrate on rivers. They can portage, walk through to certain lakes. So I think there are certain areas we can protect, even for porcupines, for any species we're talking about that I'm familiar with.

But if you exclude—and I think that's our point—the traditional knowledge and the people who are directly affected, then I think we're going down a road where it's not fair because it's exclusionary. But I think you can protect certain areas.

Mr. Julian Reed: One that I'm familiar with is the possum in southern Ontario. When I was a boy growing up, possums didn't exist in the area where I lived. Over the last decade the population of possums has increased. Last winter may have killed a lot of them off because it was a colder-than-usual winter and they don't tolerate cold as well as they do when they're in Virginia or wherever else it is. COSEWIC might see a decline in the number of possum and declare it endangered when in fact its base population, if you like, may be thriving.

• 1640

Mr. Jason Knockwood: If you're talking about that particular species, the scientists should have the ability to find out where the possum originated from and why they moved from that area. What is the population in that area where their native territory is? Determine from where it originates whether that species is leaving that area because of the tree-cutting or contamination of the areas, so they've moved up into Canada.

If that species is migrating into Canada and the Canadian population is diminishing, then I would be seriously looking at putting it on a threatened or an endangered list. As you said, the animals have no political boundaries, so whether or not.... I like to think of myself as a North American aboriginal person. I have no boundaries.

I would look at it as setting up an agreement with the United States in order for our Canadian traditional knowledge holders and scientists to look at that environment and find out why they're up here and the population back there. Why not list them here?

Mr. Julian Reed: Thank you, Mr. Knockwood.

The Chair: Very briefly, please. Yes.

Mr. Gary Lipinski: I'd like to respond to your question too, Mr. Reed, and thank you for it, as well.

Certainly animals and species don't know political boundaries, and at one time the aboriginal peoples of this continent didn't know them either. Our ancestors can go back to that time, and tell stories. We have seen boundaries and their effects. International boundaries have created invisible walls where families no longer liaise and communicate directly. Provincial boundaries, which set up different jurisdictional things, have had effects on families and communities and their travel patterns. Community boundaries and municipal boundaries—we're very familiar with the boundaries and how those boundaries affect our movement. That certainly doesn't affect the movement of species.

In direct response to your question, the question is whether Canada agrees with the Métis perspective. And if we agree that the species has a right to live and exist in Canada, then the issue comes down to whether we protect that species within Canada and encourage, based on our principled values and Canada's principled values, international communities and international boundaries to share our principles and our values and enter into international agreements to protect that species.

So if we see it as a valuable species within our environment and our landscape, then we should afford it that protection, regardless of whether it may be abundant across boundaries, so to speak.

The Chair: Thank you.

Mr. Lightbown, did you want to make a brief intervention?

Mr. Bill Lightbown: Yes, I really want to address this question, and I'm going to put it a different way.

Probably everyone here knows that in British Columbia, where I come from, there are a great number of different species of salmon. I'll talk about sockeye salmon, which is the one that everybody likes to be able to get.

There are probably 60 or 70 different species of sockeye salmon, which come from various locations throughout the province. The people who live with those sockeye, the people who are dependent upon those sockeye for survival—which includes of course the commercial fisherman and all of those other kinds of people that have an interest in the survival of the sockeye—the people who live on the ground are the people who actually know and understand the history of that particular species, one out of sixty different species of sockeye. They know exactly when they should be taking from that particular group and when they should not be taking from that particular group. No amount of scientific evidence on the part of scientists is ever going to know those kinds of things that knowledge has handed down from generation to generation among the aboriginal people.

I'll give you an example of one of the things that happen. There is a particular run where they're expecting half a million fish to go back to that particular river. They're going to go up the Fraser River. Our people were the first ones to bring to the attention of the fisheries department that there should be no fishing of that particular run of fish. We brought it to the attention of the fisheries department. Now, our people on that river have a right to take up to half a million fish from that particular run, and they're saying no, we're not going to take even one fish from that run, because that is an endangered run at this particular time.

• 1645

That's why traditional knowledge is so important in regard to living on the ground and understanding the history of the species you're dealing with. There are many other species that fall into that same category.

I just wanted to make that point. Thank you.

The Chair: And that's very helpful.

Madame Redman, please.

Mrs. Karen Redman (Kitchener Centre, Lib.): Thank you, Mr. Chairperson.

Mr. Coon Come, in the development of Bill C-5 there has been a lot of dialogue with aboriginal people. We heard Mr. Stevenson refer to it. In fact, yesterday somebody characterized it as raising the bar for the kind of consultation that has historically happened between government and legislation that impacts aboriginal people.

Minister Anderson has met at least twice, to my knowledge, with leaders of national aboriginal organizations, and there's also involvement through the aboriginal working group on species at risk. Can you share with us what your view is on the approach taken to date in its application to the implementation of this legislation?

Grand Chief Matthew Coon Come: We certainly had welcomed the initial step taken by Minister Anderson to involve us in the development of the species act in areas where he felt we should be involved. That led to opening the door so that once we got our foot in the door we could say these are the areas we are concerned about. Some of those areas we have highlighted in our presentation.

Certainly at the council of ministers meeting, the meeting that was held at Iqaluit, I think it gave us an opportunity with the involvement of all the ministers—whether it was the minister for tourism, or fisheries, depending on which provincial delegate was sent. That really gave us an insight as to some of the complexity and some of the issues that were involved, and allowed us to be able to present our views.

And the meetings you refer to I think were.... I'm not sure you can consider a one-hour meeting with a minister a real full consultation. I mean, just look at how many first nations are here, and barely within an hour you're going to kick us out of here. And that's typical of most meetings. It doesn't give us time to really address the issues or to have a real dialogue of exchange of information.

If the minister had heard what we were saying, then out of six amendments we're asking for, we would probably only make two amendments, because the minister didn't consider them. But the fact is, we're making several amendments for which we did not receive any assurance whether those would be considered in the legislation.

Mrs. Karen Redman: Another comment that was made as well yesterday to this committee was the fact that Environment Canada was too slow in setting up the aboriginal traditional knowledge specialist group under COSEWIC. I don't know if any of you have been involved in that process, but I'm wondering if any of you could comment on that view.

Mr. Bob Stevenson: Yes. First of all, COSEWIC has been in operation for how many years?

A voice: [Inaudible—Editor].

Mr. Bob Stevenson: There you go. As I stated earlier, at least a year and a half is all that we've been involved as an aboriginal working group, period. Some work has been done through the aboriginal working group with respect to getting ourselves involved with COSEWIC as well. We're having a meeting of our working group on May 15 and 16. I also co-chair the aboriginal working group, as you probably know, for SARA.

We expect that we will be reviewing those reports. Those reports will be going to the national organizations for their critique and criticism, or whatever improvement. Then of course the hope is that the committee would be addressed in terms of how we're going to resolve how that committee would work.

We would like to see a number of things—we being some of us who have worked on that. For instance, through the Mohawk Council of Akwesasne, there has been a bit of work done to suggest to the aboriginal working group to adopt recommendations as to how we're going to be involved and how extensively we're going to be involved across Canada on this whole COSEWIC issue.

• 1650

The area of recognition, of course, as some of the national groups here have suggested, is the recommendations they would like to see at this time that would help in terms of this committee listening to AFN, or MNC, or CAP, or the other groups with respect to their recommendations.

As far as the COSEWIC group goes, there's a lot of work, and it's only starting. That still has to be adopted also by the working group itself, which consists of all these national organizations, plus some of the regional groups that are out there that you will be hearing about. For instance, some of the groups you heard from yesterday would be part of the working group as well.

Mrs. Karen Redman: The majority of species at risk are found in the southern part of Canada for a couple of reasons. I think one is that there is greater diversity because in a warmer climate there tend to be more species, as well as the fact that there are more people, and so they're impacting on the habitat of species at risk. In many instances, reserves may be a place where we find species that aren't at risk as often, because of some of the stewardship that you've already referred to.

Part of the purpose of the species at risk—

The Chair: Mr. Fraser, did you want to make a brief intervention?

Mr. Phil Fraser: As a quick comment on the committee itself, as Bob said, we're recently new participants in this process. I wouldn't want to characterize the aboriginal working group as a consultative process, because we've been very clear about that. We are not the decision-makers; we're more the functionaries there. The decision-makers aren't at this table. We're trying to bring issues back to our various groups, and as I think Mr. Coon Come suggested, a meeting of an hour or two here and there hardly constitutes a consultative process when we've been consistent all along that we have not had community consultations at the grassroots level. We've been consistent with that since day one, since my involvement—Bob, was it about late 1998 or 1999 when we first got involved?—in the previous bill, and then in the newest bill we have today.

I think we indicated in our presentation that we have some concerns. As we understand, the committee has heard before from CWS that a group has come forward and identified seven species. It's one that we are unaware of. We're surprised that somebody has used a list that we're not aware of and has not been brought forward to us. If that's the case, the consultative process has fallen short—some of us have missed the boat on this one or have not been included—and we are very concerned about how that may proceed down the road.

I think somebody alluded earlier to a delay of the bill. There would not be the concerns, as others have said, had we been able to get involved with this process early on.

We also understand this committee is very concerned about where this bill may be leading. I guess in previous testimony you've heard, you're afraid of legal challenges. I think what we're saying here today is because of the exclusion of some of our peoples, and particularly the majority of us who don't reside on reserve, not only are aboriginal rights, comprehensive claims, being affected, but our treaty rights in the areas in the east, and particularly where I come from. There's no word of treaties at all in the bill.

So, yes, I guess the committee will be right. If people are ultimately excluded—the Métis and others, anybody else who has concerns with the bill—we're probably going to face uncertainty and challenges, probably before the ink has dried on the bill itself.

Sorry to digress there, but I just want to make sure on the other committee part that we do have concerns in this process, and I don't know what to expect when we meet on the 15th and 16th.

The Chair: Madam Redman, a short question, please.

Mrs. Karen Redman: I'll just finish up. I was halfway through my question. Thank you.

The intent of this bill is one of cooperation, and certainly there's stewardship happening across Canada as we speak, and that's why we do still have species at risk. The intent is to work with the provinces and landowners through a recovery planning process, and the federal government is trying to reduce the impacts of these activities on reserves and the species at risk of extinction on reserves. Isn't this an important part of the solution? Would you recommend any additions to ensure protection of species at risk specifically on Indian reserves?

• 1655

I would ask whoever wants to answer...that's not particularly aimed at anyone.

Mr. Bob Stevenson: My particular concern about the provinces is just that, that they haven't been overly eager to work with the federal government on the issue, on the species at risk legislation. Some of them have their own. None of them has a working group, as does the federal government, or an attempt at a working group with the aboriginal people.

That's one of the concerns I have. If you have a province—whether it be Quebec or any other province—that professes to have their own government involvement with the species legislation within their legislative assembly, they too should be using the example of the federal government and have an aboriginal working group in that province. That I haven't seen.

In fact, when we did meet with them, with the provincial representatives in Iqaluit last fall or late summer—fall for us, summer for the Inuit—the provincial governments didn't even respond to our presentations. We had all these aboriginal groups or people at the table like this with the provincial people, and each one of the groups specifically asked the simple question, can you involve us in your territory or in your province? Not one responded. That has been my concern.

The only heartening thing I've seen, as I said earlier, is with respect to the effort of at least having a working group. Even though they didn't listen fully to all our recommendations at the meetings we've had, we keep trying.

The Chair: Thank you, Mr. Stevenson.

Madame Kraft Sloan, please.

Mrs. Karen Kraft Sloan (York North, Lib.): Thank you very much.

Grand Chief, on page 5 of your brief you have a recommendation for mandatory protection of critical habitat. Currently it's discretionary. I have two questions, and certainly you or another one of the witnesses could answer them.

I wonder if you have strong feelings about the restriction of critical habitat, as to what lands they should be restricted to. There are some suggestions of at least land under federal jurisdiction. So I wonder if you have a caveat there.

Secondly, in Bill C-65, which was the piece of endangered species legislation we had before the committee and the House prior to or just leading up to the 1997 election, there was a section that dealt with cross-border species, and for any species that migrated across international borders the provincial government would have to have had legislation that was comparable to the federal legislation or there would be a mandatory federal trigger to step in to protect those species. In this particular legislation, they have expanded the so-called safety net provision, so we're not just talking about species that cross international borders. But it's a discretionary provision, which is the unfortunate thing.

So I wonder, firstly, when we're talking about mandatory protection of critical habitat, do you have any qualifications as to what lands you would see, or would you extend them to all lands?

Secondly, what is your feeling about changing the “safety net” provision so that it's mandatory, which would require the federal government to act if provinces weren't acting?

Grand Chief Matthew Coon Come: In the protection of critical habitat, a lot has to do with identifying the species and what impact that will have on the livelihood of the people. There's a combination of traditional knowledge and scientific knowledge.

There has to be, first of all, some kind of guaranteed harvest level for those who pursue their livelihood. You have to agree to some kind of number for that particular animal. I think that's very important.

• 1700

Carrying on from there, of course we're talking about protecting critical habitat. What lands are we talking about? I think it depends on the areas where the species are found. For reserves it's very clear. In areas where first nations have jurisdiction, would the lands be classified as category I or II lands?

We also have settlements where there is a specific recognition of land entitlement that was given through a land claims settlement and where jurisdiction was given to first nations. Through bylaw powers they can exercise their authority over the management of specific species, and they should be allowed to draft standards or regulations that can protect that species or its habitat.

The cross-border species have always been a very difficult issue. In the event that a particular provincial government does not regulate things well, does that give the authority to the federal government to initiate legislation to protect a particular species?

My concern, my preoccupation, is that whatever you do, the first nations peoples' jurisdiction and our right to take the initiative must also be recognized. At Burnt Church there was a big issue over lobster. We argued about the number of lobster, and who was right? I think we had to agree. You can't rely on government just because that's their particular department. Everybody's suspicious of government, whether it be the federal government or a first nations government. We can at least agree on the number because that's very important, and we should be able to agree as to who can regulate that. First nations will argue that we can, and I think we can introduce management practices to determine regulated bag limits, the allocation of permits and licences, and so forth. We can do that, and it has to be very clear as to when that would kick in.

Mrs. Karen Kraft Sloan: I think you made the point earlier in your presentation—and other witnesses certainly have made the point—that listing should be a COSEWIC decision because a species is either endangered or it's not. Certainly the vast majority of witnesses who have come before our committee have said this as well.

When you get into the recovery planning process, which is where socio-economic considerations such as culture come into play, and when the Governor in Council starts to make some of the decisions, then it becomes a little more political on that side. Again, if you want to have a proper recovery planning process, you have to have aboriginal peoples involved in the discussion and making decisions about how that recovery plan is going to be undertaken. This has implications for the things you've already talked about, namely the licensing, what limits you're going to impose for the take, and things like that when you have a species you are concerned about.

The other question I had concerned what one of the witnesses—I believe it was Mr. Knockwood—said about there being no definition of consultation in the bill. I think all Canadians are concerned about what consultation really means because it was certainly a buzzword of the late eighties and the nineties. I'm wondering—and you may not be prepared to answer this today—what the elements are that you would like to see in a definition of consultation. How would you define it in the legislation?

Mr. Jason Knockwood: I don't know how we would define it in the legislation. As probably one of the youngest aboriginal leaders sitting at this table today, I know that I'm very new in politics. I've only been elected for a year. I've carried a lot of morals and beliefs with me; I had them when I took this position, and I will continue to have them. One is that I'm not about to make a decision for the grassroots people without hearing from them. Listening to the people who have given me the honour of representing them is one step in consultation.

• 1705

There's a wide variety of definitions you can use, but the definition that is going to be accepted by aboriginal people—I'm speaking for my organization—is one where everyone has the opportunity to give fair input. This may be based on moral beliefs, traditional knowledge, or just an interest in a matter, whether it be a species or a land issue. As far as a specific definition of consultation goes, there is no specific definition, but there is a process for it. I believe that process can be reached, but whether or not you can write it down on paper is a question that will probably remain forever.

The Chair: Thank you, Madam Kraft Sloan.

We have time for a brief intervention, Mr. Lipinski.

Mr. Gary Lipinski: Yes. Thank you, Mr. Chair.

I'll make my comments really quick and concise in the interest of time.

First of all, one of the things I find most encouraging about participation in this whole SARA process is that I've never heard from any aboriginal person, regardless of the nation they represent, or from any politician, regardless of the particular colours they wear, who says protection for species isn't of vital importance. As you take on this critical work, if we keep that in our mind as the ultimate goal, I think we'll all make a significant contribution to the act.

I wanted to go in particular to the question that was raised with respect to critical habitat because it is a fundamental issue in the protection of those species. Whether the species uses it as a migratory stepping-off place or whatever, it's still needed in the survival of that species.

To get specific, I'd like to take up some of the comments I made in my presentation with respect to the Métis and consultation. One of the concerns I have and one we addressed in our presentation is that when consultations are to be carried out—and again your act is silent with respect to Métis participation in the consultation process—what government typically will do is to pull out a map and say, okay, we've got an endangered species in this area; who do we need to consult? They'll see a few communities there, they'll see some first nations land that's set aside as reserves, but there's no government documentation such as maps that shows Métis communities. Nobody's ever done it. They don't have Métis communities listed. They don't have them on a map or anything like that.

Once again, because of a lack of recognition in the act and because the government won't take a step further and ask us where our Métis communities are and who's involved in protecting and having input into those critical habitats, we're essentially left out of the consultation process and out of all the other aspects related to protection of that species.

I think your question about broadening the net is important. If nobody is taking responsibility for protecting that particular vulnerable species, whether a provincial government, the federal government, or an aboriginal government as represented through a nation, then something's going to fall through the cracks. Past history can show us that too often the corporate and industrial agenda takes precedence over species.

If you ask the basic question as to who has the right to deny a species existence, the answer comes logically. That has to be in the heart of this act. I don't think any government—first nations, Métis, Inuit, provincial, federal, municipal—can argue that point if you take that into consideration as you work on the final draft.

Those are my comments.

The Chair: Thank you, Madam Kraft Sloan.

Mr. Laliberte, please.

An hon. member: He's quicker than I am.

Mrs. Karen Kraft Sloan: He's had more practice.

Mr. Rick Laliberte (Churchill River, Lib.): Thank you, Mr. Chair.

[Member speaks in his native language]

I'm honoured by your presence here because it's the most vulnerable of our relations according to the aboriginal world view. That's what we're talking about, our relationship to species and the habitat of mother earth.

The way I look at it and the best way I can explain this is how the chairman referred to it at the outset, as a canoe trip. That's the way I view this legislation. We're building a canoe, but right at the outset, in subclause 7(1), we define who has the paddles. It's the Canadian Endangered Species Conservation Council. We also know who has the anchor—the Governor in Council—because before this canoe can go, the Governor in Council will decide if it moves or not. The people who are going to be consulted are the ones inside the canoe who don't have the paddle. But they can say, “Oh, it's a nice day; we can go today. It's not windy. It's safe to go across.”

• 1710

What I understand about the Canadian Endangered Species Conservation Council—and I'd like to challenge each group here—is that, because the ministers from the provinces and the territories are going to be having paddles, and also the three ministers of environment, heritage, and fisheries.... You've also added that maybe the Indian affairs minister should have one. I would challenge that. Maybe it shouldn't be the Indian affairs minister. Maybe the section 35 representation of the peoples of this country should have a paddle as well, because for centuries you have protected these species and have nurtured these species. Why should the paddle be taken away from your hands now when the species are most vulnerable and when our country has expanded to a point that has threatened the critical habitat of this country?

So just on that formation of subclause 7(2) at the beginning, it says that a major role of the council is the coordination of activities of various governments represented in the council relating to the protection of species.

So wouldn't you want to be part of the coordination of your government responsibilities? It's not the aboriginal traditional knowledge issue. That is in concert with COSEWIC and with the scientific community. The traditional community and the scientific community are well defined in another clause on the committee, which is clause 14.

That's the committee of elders, of knowledge holders. Science will give you a blunt answer that this fish is endangered; you governments make a decision. But I think the aboriginal leadership has to make that decision alongside the provincial and the federal ministries. I'd like to see your concepts on that.

Mr. Jason Knockwood: I totally agree. One of the recommendations that the Congress of Aboriginal People made in the last bill referred to that very question you pose. We had 38 recommendations.

In the 16th recommendation that we made—and I do believe this may have been handed out prior to this committee gathering—in the last one before the tabling for the last bill, we recommended that, in seeking to have a people-driven process for the protection of species at risk, the federal Minister of the Environment must ensure that there is a representation of the Canadian Endangered Species Conservation Council from each of the five national aboriginal political organizations.

That was one of our recommendations. If you don't have a copy of our recommendation, we will gladly attempt to get it to you before we leave here today.

In my opening remarks, also on COSEWIC, there was not a subcommittee. We don't want a subcommittee. Like one of the questions earlier about traditional knowledge and scientific knowledge, which one is better, and this one's saying that, and that one's saying that...well, by holding us as a subcommittee the act is saying that scientific knowledge is higher than traditional knowledge.

So one of the recommendations that we've made was that we have a committee that is equivalent—that is, the traditional knowledge would have equivalent status to COSEWIC. It would not be a subcommittee, not a part of, not one position, or one seat here and there, but would be equal. Those have been concerns of the Congress of Aboriginal People and have been a recommendation to the writing of the bill.

• 1715

Grand Chief Matthew Coon Come: Mr. Chairman, I don't think it's a question of being in a boat. Our relationship is not based on that. Our relationship is based on nation to nation; our relationship is based on government to government. A treaty relationship establishes that because if I'm in a boat with a paddle, I'm outnumbered. That was not the intent, and I know how to paddle a canoe, and I know what that would mean.

I think our involvement certainly should be under subsection 35(1) as equal participants working side by side. There should be recognition of our own jurisdictions, of our own authorities, and of our own instrument. Certainly a consultation should not be like the one carried out by the most powerful man in Canada, Mr. Nault, and his consultation on the governance act. Certainly I feel that we, as first nations, should be...if you want to deal with clarification of our role, certainly a recognition of subsection 35(1), which you raised, and certainly a recognition of our own jurisdiction to be able to establish our own codes, customs, and laws that are already recognized in certain parts of the country and to begin from that perspective.... I don't want to jump into the canoe—not yet, anyway.

The Chair: Mr. Lipinski.

Mr. Garry Lipinski: Thank you, Mr. Chairman. I'll offer my brief comments as well. I think your question is consistent with what I mentioned in my opening comments. I think I'll refer to Canada's ultimate law, and that's the Constitution of Canada, which recognized the aboriginal nations—the first nations, the Métis nation, and the Inuit nation—as the respective nations that were here prior to Canada developing as a country.

Certainly the position of the Métis National Council, and supported by many other documents, is that it should be on a nation-to-nation basis, and my comments reflected that we should be working in this particular case and this act throughout. I think we should be working, not in an adversarial role, but let's go back to my previous comments about what's really at stake here, and that's the protection of species that are in danger of being wiped off the face of the earth. We don't need to look at this as an adversarial role, but as more of a cooperative role. How can we facilitate that in reaching common objectives?

The Chair: Thank you, Mr. Laliberte.

We've been joined in this room by a colleague from the House of Commons, Nancy Karetak-Lindell, and by two colleagues from the Senate, Senator Watt and Senator Gill, and we must now conclude here because there are three groups that are waiting patiently to come to the table.

Allow me to ask a brief question of any one of you who would like to answer it. In a way, it is a continuation of Madam Kraft Sloan's line of questions. It has to do with the fact that we have received certain arguments against habitat protection being made mandatory. The argument goes that it takes too much time to identify what the critical habitat of the species is at the time of listing. So in light of that discussion, we had discussions also on establishing an interim step before the critical habitat protection in order to overcome that objection. The idea was floated around—I don't remember by which group now—of introducing in the legislation the concept of an interim habitat protection that would then be enforced until the critical habitat of the species can be identified. Do you have any comments to make on the idea of an interim habitat protection clause?

Mr. Jason Knockwood: Let me see if I understand it correctly. You said, if there's a possibility, then designate it on an interim basis until the study is complete to determine whether or not it is or isn't?

• 1720

The Chair: Establish that there is a critical habitat and that it ought to be mandatory. But the time that is required to arrive at the identification of the critical habitat is lengthy on certain occasions, and because of that the suggestion has been made to us to establish an interim habitat for the species.

Mr. Jason Knockwood: Would the interim also have mandatory restrictions on it?

The Chair: Yes, that would be a possibility.

Mr. Jason Knockwood: Would there be an opportunity at an interim level for the aboriginal people in that environment, in those areas, to have their rights and treaties and issues considered before it's determined for an interim...? I agree with the purpose, but I also have to be wary of the possible impacts on aboriginal rights.

The Chair: You are saying that in principle the idea would be all right provided that certain consultations take place?

Mr. Jason Knockwood: Yes.

The Chair: Mr. Lipinski.

Mr. Gary Lipinski: I'll offer some comments as well.

A good point has been raised. If the wheels of justice move slowly and the risk is there that the habitat the species lives on may be endangered, therefore making the species at risk vulnerable, in the time it takes to move forth on this legislation.... I think somebody has raised a valid point that we need an interim step to protect this critical habitat while it can be analysed in detail to make a proper assessment. I think I would agree with some of the comments Mr. Knockwood raised, and I think yes, that measure should be there.

However, I can't make a blanket statement of support without—obviously we've raised concerns about aboriginal participation or Métis participation in the other thing, so again we would want, on a nation to nation basis, to be involved in the assessment of that interim step as well. But certainly it seems like a logical step to protect that assessment in the interim.

Grand Chief Matthew Coon Come: Ms. Redman, you said 60% of the species that will be affected are in the south. Actually I'm concerned about the way development has taken place. It's so fast-paced, especially up in the north, where it used to be a chain saw operation and now it's heavily mechanized 24 hours a day. When you look at the creation of large bodies of water because of major diversions of rivers, that affects the habitat of the animals; it affects the livelihood of people.

So I think we need to strengthen and impose...this government should impose very strict guidelines and strengthen the environmental impact assessments of these proponents, who are carrying out these activities and affecting the species and the livelihood, the climate changes that are occurring, etc. I think you need to strengthen the environmental impact assessments before the projects are initiated, in order to carry out in-depth studies on the impact it will have on the land, on the climate, etc., and obligate the proponents to do that, rather than exempting them from any environmental impact assessments because you want to create jobs and because you want to proceed with a project. You negotiate an agreement and then exclude it from an environmental impact assessment. I think you need to strengthen your environmental impact assessments.

The Chair: A fair comment.

We must now conclude. Let me only say that whenever we have meetings with aboriginal people and Métis groups it's always very productive and it becomes quite a learning experience, and today hasn't been an exception to that pattern. When the officials of the department appear before this committee we will diligently inquire about each of the recommendations you have made to the department, as to what has happened to them, and go over those recommendations to find out what is happening to that volley of policy development you have provided and maybe take it to a happy conclusion. I cannot make that conclusion by myself.

• 1725

In any case, on behalf of the members of this committee I would like to thank you for coming to Ottawa today and to express the hope that we continue this dialogue. Thank you.

May I invite now the other three groups to come to the table, please.

Perhaps we will have a one-minute interruption.

• 1726

• 1730

The Chair: Order, please.

You have seen already how we try to proceed. We welcome the Inuit Tapirisat of Canada, the Atlantic Policy Congress of First Nation Chiefs, and the Grand Council of the Crees.

Welcome to you all. We're glad you were able to come. Because of the hour, could we invite you to make brief presentations so as to allow for questions. We may be interrupted by a vote; we don't know.

Who would like to go first?

Mr. Philip Awashish (Spokesperson and Member of the Environment Committee, Grand Council of the Crees): Thank you, Mr. Chair and members of the committee. Meegwetch, greetings, and thank you.

To make my presentation short, with your permission, Mr. Chair, I'd like to simply table a letter addressed to the clerk, along with the attachment to the letter, which is actually a copy of our previous brief to the committee, when Bill C-5 was known as Bill C-33, and it was also previously known as Bill C-65.

I'll just briefly summarize the letter addressed to the clerk, with the attachment of the previous submission of the Grand Council of the Crees. For the record then I would like to table the letter with the attachment.

The Chair: Is the brief you're attaching dated September 12?

Mr. Philip Awashish: I'm attaching the brief that was submitted by the Grand Council last September, and the letter outlines our present concerns also. I'll just summarize our concerns, since time is running out.

We know that the present bill, which was known as Bill C-33, is now known as Bill C-5. We want to make our comments on the amendments introduced in Bill C-5 and communicate to the standing committee our fundamental concerns about the treatment in this legislation of issues of concern to aboriginal first nations in this country.

The major elements of our previous submissions remain valid, and we recommend that this brief we submitted last year be considered seriously by the standing committee in relation to Bill C-5. In particular, we wish to draw to the committee's attention the recommendations in our brief dealing with: (a) the need for regulations and/or guidance with respect to the involvement of aboriginal wildlife bodies in the implementation of the legislation; (b) the need for an advisory committee on aboriginal issues relevant to the implementation of this legislation; (c) the need for active involvement of aboriginal peoples in the activities of COSEWIC; (d) the need for a broadly based approach to traditional knowledge that encompasses the full range of issues relevant to contemporary aboriginal hunting economies; and finally, (e), the high importance we attach to building into the legislation an adequate recognition for monitoring and evaluating the effectiveness of the legislation, which is a concern that in passing remains pertinent in light of the wording of Bill C-5.

• 1735

With respect to the amendments introduced in Bill C-5, we offer the standing committee these general comments. First, on the wording of the definition of “federal lands”, “federal lands” continues to imply that the land set aside or otherwise designated for aboriginal first nations in the context of land claim settlements, and more generally the land and reserve bases involved in these settlements, is not included in a definition and therefore is in important respects removed from the direct application of the legislation. We note in particular the status of category IA lands within which the Cree-Naskapi of Quebec Act applies, by which we refer to where federal legislation dealing explicitly with first nation self-government applies.

I want to tell you in passing that the Indian Act doesn't apply to the Cree-Naskapi first nations. It's the Cree-Naskapi of Quebec Act that applies.

The exclusion of these lands from the definition does not appear to be justified and inevitably raises questions about the intentions of the federal government with respect not only to such lands, but in a more generous sense to the wildlife resource bases used by aboriginal communities in Canada.

We take note of the change in the definition of “wildlife management boards”. We are genuinely concerned that the amendments are cosmetic in nature and do not remove fundamental ambiguities or even inconsistencies between the provisions of the proposed legislation and existing land claim agreements such as the James Bay and Northern Quebec Agreement. To illustrate this latter point, we draw your attention specifically to the mandate of the Hunting, Fishing and Trapping Coordinating Committee in the James Bay and Northern Quebec Agreement and ask you to consider its mandate as the preferential and exclusive forum for native people and governments jointly to formulate regulations and supervise the administration and management of the hunting, fishing, and trapping regime. That's in paragraph 24.4.23 of section 24 of the James Bay and Northern Quebec Agreement.

It is not evident that the present provisions of Bill C-5 are compatible with this important element of the James Bay and Northern Quebec Agreement. The commitment to working with the boards on the details of implementation within the areas contemplated by such settlements is not at all obvious. There is a non-derogation clause, clause 3 of the present Bill C-5, relating to aboriginal treaty rights, and it applies to the James Bay and Northern Quebec Agreement. As a general rule, federal as well as provincial legislation and treaties must be consistent, and such legislation must not impair the substance of the rights, undertakings, and obligations contained in the James Bay and Northern Quebec Agreement, and must in fact protect, safeguard, and maintain the rights and obligations contained in the said treaty. Some serious discussion will be necessary to determine how Bill C-5 is to be implemented while respecting this key provision of the legislation.

We have also noted the proposal to create a round table, which would, at two-year intervals, provide an opportunity for an intervention with the responsible minister on issues relevant to the implementation of SARA. However, Bill C-5 says very little about the composition of this round table or about the scope of its mandate. It would be reassuring if there was a clear commitment to involving aboriginal first nations in such a process.

• 1740

More generally, however, we believe that our larger concerns pertaining to Bill C-33, the previous bill, with respect to the intention of the government to involve aboriginal communities directly in the management of species classified as having special status under SARA, and for that matter in defining what constitutes a species or stock that should receive protection, are not addressed in Bill C-5.

We also want to stress the importance of aboriginal involvement in the implementation, enforcement, and monitoring of the various strategies contemplated in the legislation for dealing with species recovery. Without this involvement the principle of aboriginal participation would be considerably weakened.

There is also, and perhaps in consequence, scope for trivializing the concept of traditional knowledge and avoiding the issue of how to address the knowledge base and resource harvesting practices of aboriginal communities in the implementation of the proposed legislation. This may not be the intention, but there is certainly a risk that this will happen.

We reiterate as well our concerns about the extent of federal-provincial cooperation in the implementation, particularly in Quebec. Failure to achieve satisfactory cooperation at the federal-provincial level is an important issue, a potential obstacle in implementation for first nations within the provinces, and particularly those involved in the implementation of regional land claims settlements.

We continue to believe in the importance of close aboriginal involvement in the implementation of legislation on the subject of endangered species, and we also believe that further discussion and consultation will be required on the status of populations of key resource species used by aboriginal peoples as this status relates to the need for conservation and protection measures.

The Cree nations of northern Quebec understand the general objectives of the legislation, and subject to the caveats noted in my presentation on Bill C-33 and also the present Bill C-5, we intend to cooperate with the Government of Canada in the implementation of this legislation with respect to endangered or threatened species or breeding populations.

I thank you, Mr. Chair, for this opportunity.

The Chair: Thank you, Mr. Awashish, for outlining the caveats. Some of them struck me as being so basic and elementary that I cannot understand why they were not taken care of in the draft legislation, but we will examine all your points. I thank you again.

Who is the next speaker?

Mr. Kusugak, welcome to the committee.

Mr. José Kusugak (President, Inuit Tapirisat of Canada): Thank you, Mr. Chairman, members of the committee. It's a privilege to talk to you on behalf of Inuit Tapirisat of Canada.

I'm glad to see present here Senator Watt, who was one of the forefathers of Inuit Tapirisat of Canada, which started in August 1971. This is the 30th anniversary of Inuit Tapirisat of Canada. The whole purpose of starting it was to start developing the idea of land claims, not necessarily just because of what was happening in Alaska but because of some different resource developments that were also happening in Canada.

So Inuit Tapirisat of Canada and the presence of all the different other Inuit land claims groups, such as the Inuvialuit of the western Arctic, the Nunavik of northern Quebec, the Labrador-Inuit Association of Labrador, and of course Nunavut, where I'm originally from...although I did start my career in Inuit politics in the early seventies, I finally came back to live in Ottawa again after 30 years, and I've been here just about a year.

• 1745

It is kind of interesting to note too, because today is May 2.... I woke up this morning to a telephone call from my wife, who is teaching at a teacher's college out of Cambridge Bay. I was in Winnipeg this morning attending an Arctic Co-operatives general assembly. She of course wished me happy birthday, since this is my 51st birthday. She went on to tell me that it was minus 21 or 22 this morning when she got up, and here we are, at about 31 or so when I got to Ottawa. So there is quite a difference in the climate and the distance.

When you consider that 51 years ago today I was born in an igloo right on the Arctic Circle...I can assure you, because I was born into the Hudson Bay Company—my father and my mother both worked there—that it was a time when we never, ever, in our wildest imagination ever thought we would have to be sitting around talking about endangered species, animals, in Canada.

In late July or mid-July, when the rivers and creeks finally opened, my mother would spend the whole summer cleaning the sealskins and foxskins and everything else that the trading post collected during the winter. It was her job to clean all the raw skins and so on and get them ready for the ships to come in and take them away.

So we had a lot to do with increasing the economy at the beginning, the gross national product of Canada.

But things happen, and it's for very serious reasons we're here.

I guess it's my way of introduction to say that there are areas, when we're here in Ottawa, where it is very hard to imagine what it is actually like, where my wife is right now, and my family and so on. As a matter of fact, when Mr. Reed was talking about the possum, I was sitting here wondering what a possum is. I think I know what it is. It's a big rat or something like that? It is.

There are very diverse parts of Canada, and very long distances and so on. One of the real reasons why we want to partake in this kind of legislation is because, as one of our elders put it when I was at a global warming conference in Cambridge Bay a couple of weeks ago, it's hard to imagine how much time they, and my age group, spent outside as part of the ecosystem. We weren't allowed in the igloos or the tents—only to sleep. We lived outside otherwise and had to observe the animals, the atmosphere, and so on from the time we woke up, even before daylight. Very often we had to get up before daylight in order to get to a point where the animals are by the time the sun comes up, so we could actually harvest a lot of the animals we're scared of endangering in numbers today—and why this legislation exists.

There were other questions—

The Chair: Mr. Kusugak, we could listen to you for hours, and perhaps for days, but could you address Bill C-5, please?

• 1750

Mr. José Kusugak: Yes. I am, in a way, doing that. There were some questions...the definition of consultation, for example, was posed by one of the members here. Minister Anderson assured us that the legislation would not work unless the hunters and trappers themselves took part in this process.

Our definition of that as well—because under the land claims groups of northern Quebec, the western arctic, and Nunavut, there are wildlife management boards that are respected by the hunters and trappers associations in each of the communities. If the federal government can work through those, as far as consultation is concerned, that would be quite acceptable.

There were a couple of questions about traditional knowledge, for example. It's quite a process to do that, but I can assure you that we are today, as Inuit, defining what traditional knowledge is. You have to understand that traditionally Inuit did not have a written history. Because of that, every society law relating to animals, the land, the sky, the water, whatever, had to be made into a society law without the actual definition. Because of the comparisons between the sciences and traditional knowledge today, we are deciphering those society laws in order to be able to answer some of the questions that were raised here about the differences or the similarities between science and traditional knowledge. I can assure you that traditional knowledge is science. After all, science is a matter of trial and error, getting to a conclusion and proving a hypothesis, and so on. That's exactly what traditional knowledge is.

It is our duty and right to participate in the protection of wildlife in a meaningful way, as I have stated. I think the Minister of Canadian Heritage, Sheila Copps, summarized perfectly the approach that Parliament would be taking to our involvement in this act in a speech she gave at the IUCN World Conservation Congress shortly after the publication of the Canadian biodiversity strategy. She said:

Aboriginal people are the very people who have shown more stewardship for natural resources than any of the rest of us who inhabit this planet. They are the very people we are pledged to incorporate at the heart of decision making.

I think you'll find this to be the theme running through ITC submissions, which you have, and we want to be included, to participate, and we want to be incorporated at the heart of decision-making. We want land claims to be accurately reflected in SARA.

As I have said, Minister Anderson did say that the only way this legislation will work properly is if the hunters and trappers and people at the grassroots level are included.

We have a couple of recommendations. In those situations where the actions of the crown may affect us, aboriginal peoples must, at the very least, be properly consulted. As I said in my opening remarks, that's what the law says. The crown's strong fiduciary obligation for its aboriginal peoples includes the duty to consult when crown actions may affect us.

Mr. Chairman, if you look at recommendation 1 of our submission, you will see that the Department of Justice has decided to unilaterally change the wording of the non-derogation clause in the bill—and you've heard that a couple of times. Different wording had been in place in the federal statute for over 12 years when the department decided to make this change. In fact, the original wording was in the 1997 version of the endangered species legislation, Bill C-65.

• 1755

What is unacceptable is not that the clause was re-examined or that the change was considered, or even that a change was made, but that the department did this in the absence of any consultation, explanation, or dialogue with Inuit or other aboriginal peoples. Accordingly, we're asking that this good standing committee return the wording of the non-derogation clause in section 3 of the bill to the traditional wording that had been in place in federal statutes since 1985. If the government wishes to propose changes for the future, we are very willing to sit down and discuss these.

The second recommendation, and number 9 of our submission, deals with appropriate aboriginal involvement in two important features of the species at risk policy: on one hand, a voluntary stewardship program, and on the other, where voluntary efforts cannot be negotiated, a compulsory compensation program. In discussions with representatives of aboriginal peoples, the minister and his officials have indicated that they expect a significant number of stewardship agreements under the act to be entered into with aboriginal persons, organizations, or governments. My predecessor, with some of her staff, were assured by the minister that at least approximately 40% of the stewardship funds would be directed towards agreements with aboriginal persons, governments, or organizations.

Because of the close connection between the stewardship and compensation regimes under the bill, it logically follows that one should expect a significant portion of the compensation funds to be paid to aboriginal persons as well. Such expectations are in keeping with the statements in the bill's preamble that the roles of the aboriginal peoples of Canada and wildlife management boards established under land claims agreements in the compensation of wildlife in this country are essential, as I stated earlier. It is also in keeping with the fact that lands owned, occupied, or used by aboriginal people and in land claims areas managed by wildlife management boards or aboriginal governments generally maintain biodiversity and often constitute a habitat oasis for populations of species at risk.

In a recent report commissioned by the Minister of Environment entitled, “Sharing Responsibility: Principles and Procedures for Compensation under the Species at Risk Act”, the report's author, Dr. Peter Pearse, who I understand made a presentation here on Monday, describes some of the obstacles facing aboriginal people under a compensation program:

Business organizations and non-aboriginal landowners are generally in a stronger position in terms of expertise, funds and experience, to cope with the challenges of accessing government funds. ...I have no doubt that aboriginal groups are justified in their fear that, without a special effort to make their access to compensation funds simple, non-technical and transparent, they will be at a disadvantage relative to other claimants....

In fact, one of Dr. Pearse's conclusions was to suggest that an entirely separate allocation of funds be considered in connection with the funding of stewardship arrangements. Clearly, both the compensation and stewardship processes will be fiercely competitive as department officials have acknowledged that the funding available for such activities under the act will not be adequate to meet the demand.

Based on the above, ITC strongly recommends that the standing committee add new subsections to sections 13 and 64 of Bill C-5, stating, for section 13:

13.(3) The Minister shall, after consultation with the Minister of Canadian Heritage, the Minister of Fisheries and Oceans and wildlife management boards and aboriginal governments and organizations that the Minister considers appropriate, establish national standards or guidelines with respect to access to agreements under subsection (1) by wildlife management boards or aboriginal governments, organizations or persons.

—and for section 64:

64.(1.2) The Minister shall, after consultation with wildlife management boards and aboriginal governments and organizations that the Minister considers appropriate, establish national standards or guidelines with respect to access to compensation under subsections (1) and (1.1) by aboriginal persons.

• 1800

That's basically my summation.

Perhaps you can give my colleagues a couple of minutes, Mr. Chairman.

The Chair: It depends on your definition of a couple of minutes. Is it Mr. d'Eça who would like to speak now?

Mr. Michael d'Eça (Legal Adviser, Inuit Tapirisat of Canada): Yes, Mr. Chairman, and I will keep it very brief.

Just to preface my remarks, I'm going to deal with one of the recommendations from ITC. Hopefully, that will give you a flavour of the submissions we are presenting to you. There are 15 recommendations altogether.

My remarks will be with regard to traditional knowledge, and I want to preface them with this. There was a discussion earlier with the first round of organizations concerning disagreements or conflicts between traditional knowledge and science. I think that's a bit of a red herring. Traditional knowledge and science are by and large complementary. They produce a more holistic picture of reality, and I can provide you with some examples of what I'm talking about.

But let me turn to ITC's recommendation 15. If you have your submissions with you, you might be able to follow along, because I'm going to jump from clause to clause.

Pursuant to subclause 130(6) of Bill C-5, if aboriginal traditional knowledge is available on a species, it must be in the status report upon which a subclause 130(1) assessment is based.

Pursuant to subclause 130(2), such an assessment for a schedule 1 species must be completed within 30 days after clause 14 of the act comes into force, unless the cabinet orders an extension to that time. Any assessment not completed within the 30 days or within that extension ordered by cabinet is deemed to have been classified by COSEWIC, and thus it retains its existing classification under the present schedule 1.

COSEWIC currently has no infrastructure, policy, experience, or precedent to rely on in meeting the legislative requirement to include aboriginal traditional knowledge in its assessments.

The minister in a letter to the aboriginal leaders last winter stated:

This is a significant change from past COSEWIC practices in which there was no requirement to take into account either community knowledge or aboriginal traditional knowledge.

As you heard earlier, during the last year the Department of the Environment and the aboriginal working group, which is an ad hoc coalition of aboriginal organizations from across the country, have been working toward the formation of a body that could serve as the COSEWIC subcommittee specializing in aboriginal traditional knowledge. That's a difficult project to accomplish. It's without precedent. Although progress is being made, much work still needs to be done before a functioning body is in place. It has become clear to all concerned that until such time as the subcommittee is operational, COSEWIC will have no reliable mechanism for accessing the best available aboriginal traditional knowledge, even though such vital knowledge clearly exists and is available to those who know how to access it.

If no modification is made to clause 130, the most likely outcome will be that the vast majority of the assessments carried out pursuant to subclause 130(2)'s 30-day timeline will be based on status reports containing a summary only of the best available scientific knowledge. Should questions then be raised about the absence of the best available aboriginal traditional knowledge, the undoubtedly sincere, though very mistaken, answer will be that there was no aboriginal traditional knowledge available.

Accordingly, ITC recommends that the following subclause be added to clause 130. It would immediately follow subclause 130(2). It's designed to address the otherwise inevitable disregard for aboriginal traditional knowledge that will occur during the first month of COSEWIC's operations under SARA. It goes like this:

In the case of any species requiring an assessment based on a status report containing a summary of the best available scientific knowledge and aboriginal traditional knowledge, no assessment shall be completed prior to six months after the subcommittee specializing in aboriginal traditional knowledge is established under subsection 18(1), and all such assessments must be completed within 18 months after the subcommittee is established.

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Mr. Chairman, in the interest of time, I'll leave it at that. Thank you.

The Chair: Thank you.

Also, thank you, Mr. Kusugak. Many happy returns from all of us. We're glad to know you're celebrating a birthday in the capital.

Now we have the third group from the Atlantic Policy Congress. Who would like to speak? Mr. Julian, please go ahead.

Chief Gerard Julian (Chief, Afton First Nation, Atlantic Policy Congress of First Nations Chiefs): [Witness speaks in his native language]

Thank you, Chair, for allowing us to enter your meeting here and voice some of our concerns on behalf of the Atlantic Policy Congress of First Nations Chiefs.

My name is Chief Gerard Julian, and my partner here is Chief Patrick Francis. Our technical person is Cheryl Knockwood. We'll be doing a powerpoint presentation, and we'll try to get to it as fast as we can.

Let's start with the background. Bill C-5, SARA, was introduced with no input from the Mi'kmaq, Maliseet, and Passamaquoddy chiefs. The Atlantic Policy Congress of First Nations Chiefs signed a resolution stating that Environment Canada has been negligent in getting input from the Mi'kmaq, Maliseet, and Passamaquoddy chiefs.

The potential impacts of clause 35 on aboriginal treaty rights are too great. Therefore, we must voice our concerns and try to change Bill C-5. It may have a huge impact on the continued practice of aboriginal and treaty rights and on aboriginal title and reserve land. We need to send a strong message to Minister David Anderson that this is not acceptable.

The SCC's interpretation of rules, Sparrow test: it gave the federal government the power to justify infringing on aboriginal and treaty rights if it can prove legislation has a valid objective such as conservation. SARA is about protecting species, which is inherently about conservation.

Activities to date: held regional technical sessions on SARA with the Mi'kmaq, Maliseet, and Passamaquoddy peoples and held a two-phased information session on SARA in order to develop this position paper.

Concerns identified: to continue the practice of MMP aboriginal and treaty rights and to maintain MMP aboriginal title to MMP reserve lands.

The following are the recommendations we put forward to the parliamentary standing committee on Bill C-5, the Species At Risk Act. Without prejudice, the chiefs' submission to the parliamentary standing committee is not to be construed as meaningful consultation and as justification for infringement on the aboriginal and treaty rights of the Mi'kmaq, Maliseet, and Passamaquoddy nations.

Overview: the purpose of this paper is to set out a legal analysis of the impact of the bill on aboriginal and treaty rights and to make recommendations for changes to the bill that will ensure the protection of both the environment and aboriginal and treaty rights.

Recommendations: a non-derogation clause, consultation, recognition of first nations governments in SARA, traditional knowledge, listing of wildlife species at risk, compensation, and others.

We're voicing our concern, as you've heard from all aboriginal peoples right across the country, that we want to be included in this.

I will hand it over to my colleague Patrick Francis.

Chief Patrick Francis (Chief, Maliseet Nation at Tobique, Atlantic Policy Congress of First Nations Chiefs): I have a sore throat, though. Just kidding.

A little introduction. I'm chief of the Tobique First Nation in New Brunswick, which represents the largest Maliseet population in Atlantic Canada.

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I was asked to make a presentation to you on behalf of the APC, the Atlantic Policy Congress of First Nation Chiefs, and I guess my portion of the presentation will just continue from where Chief Julian left off.

Under non-derogation recommendations, the chiefs of Atlantic Canada recommend that the language of the non-derogation clause more closely follow the stronger language contained in section 25 of the Constitution Act of 1982. As the act is a federal piece of legislation and will apply to reserve lands, the act should require full consent of aboriginal people that will be affected by the act.

To continue, potential infringement of aboriginal and treaty right is so great that it could be tantamount to extinction in some cases. Aboriginal people who are accessing their treaty and aboriginal right or hold land pursuant to aboriginal title should be listed as a party that is exempt under subclause 83(1).

Under the consultation phase, at a minimum the act should provide a provision that requires a duty to engage in adequate, meaningful consultation with first nation governments directly in the following clauses. At a minimum, consent should be required in the following clauses—there's a series of 13 clauses there, and I'm not going to go over each and every one of them so that we can continue, but I believe they're listed in our position paper, which has been handed to the committee.

As to recognition of first nation governments in SARA, the chiefs of Atlantic Canada recommend that the bill be amended to provide for all explicit recommendations and involvement in all first nation governments, not just those party to land claim agreements. The Mi'kmaq, Maliseet, and Passamaquoddy nations signed treaties but have never conceded title and still have title and jurisdiction in Atlantic Canada.

On traditional knowledge, the chiefs recommend that there be a participation of more than one individual on COSEWIC from the subcommittee on traditional knowledge to reflect the diversity of traditional aboriginal knowledge from across Canada. The chiefs recommend that the bill be amended to delete the review of listed species by the Governor in Council as per clause 27, and alternatively indicate that all species accessed by COSEWIC be listed.

The chiefs also recommend that the bill add a provision that, notwithstanding the recommendation of COSEWIC, any first nation may make recommendations to protect a species within their traditional territory, which will be recognized and given equal weight as though it were a recommendation of COSEWIC.

Under the comprehensive clause, the chiefs recommend that the bill provide for input of first nations with respect to the development of regulations under subclause 64(2). They make recommendations that the Mi'kmaq, Maliseet, and Passamaquoddy first nations have an opportunity to review and provide input on the recommendations by Dr. Pearse on the compensation, as our member nations were not consulted by the doctor.

The chiefs also make the recommendation that the minister consult with first nations with respect to further development of compensation provisions of the bill and any subsequent regulation regarding compensation.

The chiefs also recommend that the bill and the regulations specifically state that any first nation must be justly compensated for loss suffered as a result of an infringement of the exercise of aboriginal and treaty rights and aboriginal title.

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The chiefs also recommend that the federal government support both the technical and general capacity-building of first nations, i.e. developing funds for geographical information systems that would help in the preservation of the endangered species or species that are in trouble, and also funds for training.

The chiefs also recommend that an elder survey should be undertaken in all communities so as to produce an index of past and current species, past and current harvesting practices, as well as medicinal, ceremonial, and social species areas both past and present.

The chiefs recommend that first nations in possession of species at risk who are practising aboriginal and treaty rights must have the ability to cross the border without harassment. I believe this is the final recommendation.

If no changes that reflect our concerns are made to Bill C-5, the chiefs take the position that the impending act to protect the species does not apply within the traditional territories of the Mi'kmaq, Maliseet, and Passamaquoddy people.

The Chair: Thank you. We now have a round of questions starting with Mr. Forseth.

Mr. Paul Forseth: Thank you. I know we're running out of time, so I just want to address the issue that many groups today have talked about. That's the return of the wording of the non-derogation clause to the traditional wording that has been in place in the federal statutes since 1985.

I'm reading from pages 2 and 3 of the ITC executive summary. The rationale says the wording of the non-derogation clause presently in clause 3 of Bill C-5 was developed in the absence of consultation with or input from aboriginal peoples. The effect of the wording change has been to transform what is a mutually acceptable aboriginal non-derogation clause into a unilaterally imposed crown derogation clause.

Well, we're arguing about the “what” versus the “how”, the product versus the process. When I look at the suggested changes, I'm asking, what is really wrong with the new way of saying it? Now we can argue forever about how we got there, but I would like particularly some substance of the actual meaning of the suggestion that the new phraseology is unacceptable, or somehow changes powers or authority.

So what is really wrong with the result that we have in the bill?

Mr. Michael d'Eça: I'll answer your question, but just to begin, the main point is that no consultations were carried out on an important matter affecting aboriginal peoples. So what aboriginal groups are unanimously saying is, look, sit down with us and discuss it. So that's the main point that is being made. But it's legitimate to ask what's wrong with the new language, because in fact it looks very similar. It looks like just a couple of words were moved around, so what's the big deal? But it is a big deal, and if you tried to get...let's say this committee said, we're against this; we want to change it. You'll see the wall you come up against with the Department of Justice.

The Department of Justice sees a great change in it. To explain it briefly, as we don't have much time, the original wording essentially was a pledge by the Government of Canada that said, we're not intending to interfere with aboriginal or treaty rights. We know we have that right under the Sparrow test and so on, but we're not intending to do that.

The new language simply mirrors the case law. It says, we can interfere with your rights if we meet the test. One Department of the Environment official in that aboriginal working group that you've heard about—and we brought this up—said it does come across as almost a warning or a threat to aboriginal peoples: “Okay, we're putting you on notice; we may interfere with your rights”, whereas before it was saying “Our intention is not to interfere with your rights”. That makes a big difference in a provision that is so important to aboriginal peoples.

But again, that's the substance. That's what we should be sitting down with the Department of Justice and talking about. The main point is that they have refused to sit down and talk with aboriginal peoples about this provision and about the changes to it. If they want to make changes, all right. Maybe we can have a positive statement that still meets their concerns and meets the concerns of aboriginal peoples, but no opportunity has been provided to do that.

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Mr. Paul Forseth: Okay. That is why I wanted to get the fundamental point of really what the difference is here. Is it just cosmetics, or are people upset because they weren't consulted? Or does this really have a larger meaning of some kind of different agenda? Then when you try to approach change, you're saying there's a lot of resistance because there's really some substance there that is being protected.

Mr. Michael d'Eça: There are two substantive points.

There is a substantive change in the meaning of the non-derogation clause, and a more fundamental substantive point is that when you're going to make changes that affect aboriginal peoples, the crown ought to be consulting with them, and the crown has not done so. In fact, it has essentially refused to do so, to this point.

Mr. Paul Forseth: Okay, thank you.

The Chair: Thank you very much.

[Translation]

Mr. Bigras, you have the floor.

Mr. Bernard Bigras: Thank you, Mr. Chairman.

My question is for Mr. Awashish. I would like to begin by congratulating Mr. Awashish for his brief, which deals with aspects that have been but very little covered up until now.

On page 5 of your brief, you state that the bill raises important questions relating to the way in which the law will apply in areas under provincial jurisdiction. I am very happy to see that, first off.

On page 6 of the English version of your brief, you mention the James Bay and Northern Quebec Agreement. You remind us of the designation, under this agreement, of four land categories known as category I A (federal), I B (provincial), II and III (provincial as well). You indicate that given these designations, the enforcement of the act is a very complex affair. I would like you to elaborate a little bit more. How do you see the enforcement of this act relative to lands in categories I B, II and III?

[English]

Mr. Philip Awashish: As I pointed out in my presentation, firstly, Bill C-5 has to be clarified as to whether category IA lands, as provided under the James Bay and Northern Quebec Agreement, is part of, or is, federal land within the meaning of Bill C-5. As it is now, that is not clear.

Bill C-5 presently includes “federal land” to mean reserves, apart from A and B. I'll read the part about the reserves:

reserves and any other lands that are set apart for the use and benefit of a band under the Indian Act

The Cree-Naskapi...or, in this case, I'll speak on behalf of the Cree Nation of Quebec. The Indian Act does not apply to the Cree; it's the Cree-Naskapi of Quebec Act that applies. It is special legislation that flows from an obligation from the modern-day treaty called the James Bay and Northern Quebec Agreement.

The federal government was committed and obligated to enact special legislation, which is called the Cree-Naskapi of Quebec Act. It basically provides for local government, and management and control of category IA lands.

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The purpose of my presentation is to ensure the committee that we are clear what this bill is intended to achieve in terms of whether it is intended to include category IA lands within the meaning of «federal land» pursuant to Bill C-5.

On the second question of Quebec federal jurisdiction, we've had the experience over the past three decades, I would say, of Quebec and Ottawa competing for jurisdiction in many areas. One area is environment, which we are concerned with at the moment.

In implementing the James Bay and Northern Quebec Agreement, the Cree have had to face major obstacles in dealing with Canada on one hand and Quebec on the other hand, because they both claim jurisdiction for the protection of the environment. It hasn't been an easy process, sitting down with Canada and Quebec to see what can be done in the area of the management and administration of social and environmental protection regimes in northern Quebec.

We had to have, in some cases, some sort of a harmonization arrangement—let's call it—between the federal government and the Quebec government. In the case of SARA, of course, the province is going to scream. I'm not going to speak for them. I know they jealously guard their jurisdiction over natural resources. Wildlife resources are considered the jurisdiction of Quebec; Quebec claims jurisdiction.

Again, we have to have some sort of an agreement. We don't intend to sit along the sides as a Cree nation and let Ottawa and Quebec sort out their differences. We intend, of course, to be involved in the discussions to see how SARA can be implemented within Eeyou Istchee, which is what we call the Cree homeland.

[Translation]

Mr. Bernard Bigras: I just have one other small question aimed at further clarifying this point.

Do you believe, in the case of land designated in the James Bay and Northern Quebec Agreement and under provincial jurisdiction, that the law of Quebec should apply or that only the species at risk act should apply or, lastly, that the latter should apply only if the endangered species legislation of Quebec is not applicable? Given provincial jurisdiction and the land designations made under the agreement, do you believe that Quebec legislation should apply?

[English]

Mr. Philip Awashish: The James Bay and Northern Quebec Agreement was intended to settle the whole question of jurisdiction—what level of government has jurisdiction, the land categorized as category IA, category IB, category II, category III lands.

The James Bay and Northern Quebec Agreement, of course, does not in any way intend to amend the Constitution. The Constitution is there. It spells the division of powers between the two levels of government. The agreement was intended to clarify the jurisdiction of governments, but it was also intended to involve the Cree Nation of Quebec. It was intended to set forth a new partnership between the Cree Nation of Quebec, the Government of Quebec, and the Government of Canada.

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As to whether SARA or Bill C-5 applies to lands that are proclaimed to be under Quebec jurisdiction, it's clear under our own treaty that matters that are clearly under provincial jurisdiction remain under Quebec jurisdiction and matters that are under federal jurisdiction remain under federal jurisdiction.

It isn't our intention that we settle squabbles between Ottawa and Quebec. We certainly are interested in settling the squabbles, but we hope it will be to participate in some meaningful way on any matter that applies to the implementation and application of SARA or Bill C-5 in our territory.

The Chair: Thank you.

Mrs. Kraft Sloan.

Mrs. Karen Kraft Sloan: Thank you, Mr. Chair.

A question that I was going to ask the previous set of witnesses—because there was a great deal of discussion about traditional ecological knowledge and COSEWIC—was how would this parallel structure be established? There were some witnesses who made comment on this without my having the opportunity to ask the question, so I made note of their comments. I'm just wondering, from your point of view, how you see members of the aboriginal communities in Canada using traditional knowledge in the preservation of species and how these people would work with the representatives from COSEWIC. Right now we have this subcommittee on traditional knowledge. I'm just wondering, from your points of view, how you see this unfolding.

Mr. José Kusugak: Karen, we've done this for quite a while now under the Inuit Cultural Institute. Even in the mid-seventies, when the social scientists and other scientists went north and proclaimed, for example, that they knew Inuit never lived in certain parts of Nunavut, for land use and occupancy studies, and so on, because there were no bones or anything that signified that Inuit were there.... In their opinion, those were scientific facts. So the Inuit people, with traditional knowledge, in speaking with the scientists, said, “Have you looked under the lakes, in the water?” They said no. The Inuit said they probably wouldn't find anything around there because Inuit make a point of building igloos on the ice because it's way warmer than if you make them on the mainland. So they were able to help each other in comparing where Inuit occupation used to be, and so on.

There are other examples a little closer to this issue. When the scientists and biologists proclaimed that the Inuit were depleting the caribou in the Keewatin region, and we got to a point of poaching at certain times of the year because the biologists had counted the caribou and said the numbers were going to go down to zero if we kept going.... Through traditional knowledge, Inuit said the migration routes go on for seven to nine years sometimes, and then the caribou will just take off into the tundra and they won't show up for years. Inuit went through starvation periods in the old days, but they come back. Inuit are hunting way less caribou today than they did years ago, when they had to feed their dog teams and that's what they lived on totally.

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There was a big misunderstanding between the traditional knowledge people and the government biologists and scientists. But sure enough, as the traditional knowledge people said, the caribou did come back, in thousands upon thousands, when even they went onto the islands in order to get the seaweed to eat the salt and so on. But still the scientists sort of said, sure, they came back now, but surely you're going to deplete them if you....

But out of that came the Qamanirjuaq Caribou Management Board. So that was a very positive thing between the western scientists and the Inuit traditional knowledge scientists.

So there have been many occasions where they have been able to work together. Right now, as I said, we're to a point of...a lot of the traditional knowledge has been made into society laws: you do certain things, otherwise you will die, or something. Even though you know you don't die, you respect those laws by the time you're old enough to know what they're used for. We're at the point of deciphering them in order to make the scientists understand the science behind them. It is, even for us, a challenge to decipher some of them, because they're not in plain Inuktitut, or plain English for that matter.

Mrs. Karen Kraft Sloan: I think there have been some very powerful examples of how traditional knowledge and western science have been able to find a way to work together and get a better understanding of ecological problems. Certainly, as a member of this committee since 1994, I've heard a lot of these examples.

I'm wondering specifically about how we can develop a system that brings traditional knowledge holders together with the COSEWIC organization itself, if there are any ideas from the witnesses about that particular situation with regard to this legislation. I think the point you've made is a very important point, which gives us a fuller understanding, but how can we focus on COSEWIC and traditional knowledge holders and how they can work together in a more formal way? Is there anything we can express in the legislation to that end perhaps? I don't know. Maybe this is something you want to think about a bit more.

Mr. Michel D'Eça: I would just say that the legislation is going to come on line pretty soon, and although there are ideas out there, they haven't solidified. There hasn't been enough of an emphasis put on this matter of sitting down and working out the practical details, how it is all going to work. We know we have to somehow access local knowledge but bring it into some kind of central subcommittee that works with COSEWIC, and what are all the steps?

I guess my recommendation would be that in order to get to the point where answers can be given to your question, there has to be a much greater emphasis, certainly by the department, on making this a front-burner issue—you put in the time and the resources and have aboriginal people leading the way. Right now, in my view, it's very tightly controlled by the department. I think we're about to receive a discussion paper drafted by Henry Lickers from Akwesasne, which may give some indication, but it's late in the day, and it should be made a much higher priority.

Mrs. Karen Kraft Sloan: Mr. Chair, I'm surprised not to see Henry Lickers' name as a witness. I think in light of some of the discussion we've been having today, it would be helpful perhaps to have Mr. Lickers appear as a witness. It's for your consideration.

The Chair: Thank you, Madam Kraft Sloan.

Mr. Laliberte, please.

Mr. Rick Laliberte: I'll just ask the same question I asked the other representatives who were here before.

The Endangered Species Conservation Council plays a very meaningful role. This is an organic approach where certain decisions, certain regions, certain species will be shown in a different light, as are the differences in our country. How should the aboriginal governments be involved in that council? Do you see them involved there? Should they be involved in that subclause 7(1) of the conservation council?

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Mr. José Kusugak: I really try to emphasize, because I was also the president of the Nunavut Tunngavik corporation, who I understand made a presentation here yesterday, that there is a land claims agreement. In the land claims agreement the Nunavut government, which is a public government but by number is in fact an aboriginal government, today works together with the board and respects the sections in the claims that deal with wildlife management. So in everything we do as far as animals, different species and so on, are concerned, we deal with the Nunavut Wildlife Management Board.

In the same way, in the James Bay and Northern Quebec Agreement for the Makivik and Inuvialuit up in the western Arctic there are provisions in the claims that deal with...they're actually public institutions of government like the wildlife management board and so on, but they are connected to every community and every hunter is a member of those. So in that way we try to make sure they're included in every aspect, and that's what we really do try to push.

The Chair: Philip Awashish.

Mr. Philip Awashish: Thank you, Mr. Chair.

It is important that the act itself makes some reference to first nations governments. It is also important and critical that first nations governments participate in the Canadian Endangered Species Conservation Council.

Of course, as a Cree nation we have had experience in implementing treaties. The meaning of the consultation hasn't been very practical, or even having participation in advisory bodies has not been very successful in the sense that the advisory bodies under the James Bay and Northern Quebec Agreement have not had any significant impact on policy-making, or the making of legislation for the management of wildlife species, or for social and environmental management.

If aboriginal peoples and their governments can participate in this council, it would be one area in which the government can demonstrate what it has been calling a new partnership with aboriginal peoples. I've heard the term “new partnership” so often, ever since I entered politics back in 1970, for the past 30 years in fact. I keep hearing the words “new partnership” or “a renewed relationship”, but at some point in time these terms have to be given some meaning and there has to be some effective role for aboriginal peoples in the governance of this country. So far they have been just simply words. I haven't seen any meaningful action.

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The Chair: Chief Julian.

Chief Gerard Julian: I'd like to reiterate what's been said from B.C., up north, the prairies, southern Ontario, and the Atlantic provinces. It's participation, and making us a part of this country and part of the decision-making that affects first nation governments. And how many times does this have to be said to the committee, or when you're doing legislation, how many times does that have to be repeated before someone actually hears it? One of the other things is the recognition of the jurisdiction of first nations people in their territories within Canada or within the government.

As I sat on the sidelines today and listened, everyone who spoke spoke of participation, partnerships, words that the government uses. And as my colleague who just spoke before me said, you have to put some substance and meaning in those words and provide the access to first nations within jurisdictions and within the laws to make them a part of the law of this country of Canada and to have the first nations' participation. I'll reiterate that. Maybe somebody in the committee might understand and hear what participation means.

Thank you.

The Chair: Chief Francis.

Chief Patrick Francis: Thank you, Mr. Chair.

I have a few comments concerning the representation from the east, the chiefs of the Atlantic provinces.

Geographically, we have 32 first nations in Atlantic Canada and we're placed in postage-stamp-sized reserves. The first nations communities are running out of land, out of property for housing. In terms of our community development plans, we don't know where we're going to put our next house, and now we're asking to be participants in the act or legislation that's being introduced here.

There are first nations out there that may have 300 yards of ocean front. All of a sudden, arbitrarily a leatherback turtle comes in there and bingo, it's all designated because this is a federal legislative act. This is going to have serious repercussions on first nations. We don't have land. We don't have properties within the boundary of the so-called first nation reserves.

We've always stated that we've signed treaties in the past and we've never conceded to a loss of land or surrender of land in the Atlantic region, and Marshall is just a recent indication of that. The courts are actually starting to recognize that, yes, there are treaties, and there are really strong treaties, in Atlantic Canada.

If we don't have the opportunity to participate in the process and have memberships in both the traditional clauses and the recommendations that a lot of people have made out pertaining to how do you get around that, I don't know. I don't know the answers to all the questions either. We make recommendations—i.e., maybe go regional. Have a regional representation so when a species, or a plant or something, comes up on the table you have representation from that general area there.

We seek to have a voice at the table instead of all of a sudden this legislation comes down and bingo, we have to implement them.

The traditional use of a lot of these plants and animals is going to be affected, and we live so close to the border of the United States that people are worried they're going to be harassed. It's hard enough to go back and forth on a daily basis, and some people work over there.

I wanted to reiterate the recommendations I have been sent up here to voice. Please consider them. We want to participate in this and we understand the importance of what SARA is all about.

Thank you.

The Chair: Madam Kraft Sloan, a last short question, please.

Mrs. Karen Kraft Sloan: Thank you, Mr. Chair.

I have maybe not a question so much as a comment right now. I mentioned earlier with the previous group of witnesses that what the grand chief had suggested in his brief was that the listing be COSEWIC-based for the legal listing and after that is the recovery planning process in which the socio-economic considerations are taken into effect. I think in order to help us ensure that this is good legislation, particularly as it meets aboriginal peoples' needs in general, and more specifically as it might meet some regional interests, taking a look at the recovery planning section of this legislation may be a good idea if you feel there are things that need to be strengthened in terms of how you are representing your own people here today. It would be very helpful to us. It may be adequate the way it's currently drafted. There may be things that you feel you would like to strengthen.

• 1850

So I would just refer you to the recovery planning section because that's really where you're working with people on the ground. It certainly does talk about working with aboriginal peoples and things like that. But I think you may want to re-examine it in light of some of the more general things you've been saying today as well.

Thank you, Mr. Chair.

The Chair: Thank you. Any other comments?

To summarize it all, perhaps what we heard frequently this afternoon is an invitation and an urging by you to engage less in rhetoric and more in substance, if that is a fair way of summarizing what you said.

We'll have to study very closely what you told us because some of what you said comes as a surprise, I'm sure not just to myself.

We want to thank you for having brought your observations, your comments, and your suggestions to the committee.

Chief Francis and Chief Julian, I'm sure this is not your first exercise of this nature and that you had an opportunity this time to bring forward your thoughts—I hope also on the occasion of Bill C-33 and Bill C-65. Years go by and we don't seem to learn very much, but we will find out what has happened between your representations and meetings with the department and the drafting of the bill when the officials of the department will appear before the committee.

To you, Mr. Kusugak, best wishes again. Thank you for coming such a long way.

Thank you, Mr. D'Eça, for your incisive and cogent interventions.

To you, Mr. Awashish, thank you again. Please bring my regards to the grand chief. I have a very fond memory of a visit to your land as your guest some 15 years ago. It was a great experience, I must say. So look after the land, and let's hope we can produce something positive here.

This meeting is not adjourned yet, but we will say goodbye to our guests and witnesses because we have one small item for a very brief discussion, and that is the OECD letter. Thank you again.

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The Chair: The subject is the OECD conference of May 14, 15, and 16. The letter is in your possession. There may be some members who are not present tonight who would like to participate, but let us see at the present moment what is your reaction to it because any travel expenditure will have to be approved by the liaison committee. Therefore we have to get organized and get things done for those who wish to go.

Who would like to comment? Mr. Knutson.

Mr. Gar Knutson (Elgin—Middlesex—London, Lib.): Mr. Chair, I take you at your word, with your experience, that if you say it's worthwhile going, as you did yesterday or the day before, we should go. I'd be interested in going. I would hope we could try to accommodate as many people who are interested in going as possible.

The Chair: I cannot think of one member of this committee who would not benefit considerably from attending this event; therefore it is something that I'm very keen in bringing to your attention, having been there two weeks ago and having been told what is going to emerge. I think it would be beneficial to you personally, and also to the committee in general, and to your work in the House of Commons, and in your political career, no doubt.

Mr. Paul Forseth: I'm also interested in attending. What happens, of course, is when these things go up the daisy chain, it's always a matter of cost. I certainly am very appreciative of the offer to have the conference fees paid for by our hosts. I'd be prepared to try to use my airline points that I've accumulated on my credit card to pay the airline portion, if there was a budget crunch, and then the subsidy from the committee's funds would come for the hotel portion. That's an offer, but of course if it can be totally handled, that would be preferable.

The Chair: The information from Air Canada is that for the economy travel to Paris and back, 60,000 points are needed, and for the business travel, 80,000. So it can be done, and it certainly would facilitate things enormously if members were to use their points so that the cost would be limited to hotel, local transportation, and a per diem.

Mr. Comartin and Madam Kraft Sloan.

Mr. Joe Comartin: Mr. Chair, I was under the impression that the committee work would go on through this period of time, but I'm getting the sense.... Is that the case, that we'll continue to meet?

The Chair: Oh yes, this committee continues.

Mr. Joe Comartin: Okay.

The Chair: Those who go just go for three days, plus travelling and so on. It's a total of five days. What day of the week is the 14th?

Mr. Joe Comartin: It's a Monday.

The Chair: So you will be deprived of this committee's hearings, which is probably an important item, but what you would be absorbing over there is enormous.

Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: Mr. Chair, I'm very supportive of members of this committee going. Number one, a lot of the work we do on this committee is international in scope and we never really have the opportunity to participate in international fora. So I am very supportive of that. However, I am very concerned about members being required to use points because some members do not acquire a lot of points based on the pattern of their flying. Some members are new members. I also find that in order for us to travel, and it is for parliamentary business, we are often forced into a situation where we're begging and borrowing, cobbling things together so we can make a trip—attending some very important conferences and meetings—on behalf of the government, on behalf of the people of Canada. If members want to do that, that's fine, but I find it appalling that we are continually having to beg around to be able to attend these things. I feel in many respects it's setting a dangerous precedent to suggest that members are going to be doing this.

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The Chair: There's some merit in that observation, particularly with the newly elected ones.

Mr. Knutson.

Mr. Gar Knutson: I also think we're making a major assumption if we think you're going to have seats available on points. The airlines set aside a certain amount of seats that they're willing to sell on points, and when they're gone, they're gone, and they may not be available. So I think in terms of budgeting purposes we should put a budget together that doesn't assume people travel on points. If somebody wants to travel on points to save the government some money, that's great, but I would see the whole issue of travelling on points as a side issue.

The Chair: All right. Could we have an indication now as to who wishes to go? Five.

A voice: What do you do if the whole committee wants to go?

The Chair: We can't because we need a quorum of three at least to have the hearing. At least we can make an attempt to inquire about a contingent of five, and we'll take it from there.

Mrs. Karen Kraft Sloan: I think, Mr. Chair, you're going to have to talk to the other members.

The Chair: We have talked to the other members. They were here yesterday. Members have been informed.

Mrs. Karen Kraft Sloan: Sorry. I apologize.

The Chair: The clerk will poll the absent ones, because we have to move swiftly to obtain whatever amount is required. The clerk will report back to us as soon as he has an answer, which will be next Tuesday, May 8, at the latest.

The meeting is adjourned.