Indigenous and Northern Affairs Committee on June 4th, 2013

[Sophie Pierre]

I'm not sure I understand the question. Are you asking if Yale places a higher emphasis on fish than they do on other parts of their treaty?

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

In reality, will the rights conferred to the Yale First Nation with the signing of the treaty take precedence over and exceed the exercise of activities by other communities, such as subsistence activities that may be enshrined in the Constitution?

Ultimately, will the rights granted to the Yale First Nation take precedence over the rights that could be exercised by other nations and other citizens of British Columbia?

[Mark Smith]

I don't believe they would. I think that's an unknown legal question right now. What rights take priority, whether it's a section 35 right or a section 35 treaty right? The courts haven't determined that, but I think the answer is that they wouldn't take priority.

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

It is highly likely that this contentious aspect will meet with objections, and that the case will go to court.

Should section 2.12 be signed and implemented quickly, there is a strong possibility that the legislation will be challenged by the Stó:lo, with whom I have met a few times. They are not happy campers, if I may use that expression.

Do you think this disputed aspect will rear its head fairly quickly after the signature? Finally, how much money will be invested in this?

[Sophie Pierre]

We expect that there—

[Mark Smith]

I don't think it's for us to say. I think that's probably for Stó:lo to decide if they want to pursue that process. If they do, there is nothing stopping them from doing it immediately.

I don't believe there is funding available for that. That's always a consideration for the Government of Canada to decide if it can fund those sorts of things. The courts have sometimes granted funding for those kinds of cases.

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

Ms. Pierre, do you want to add anything?

[Sophie Pierre]

What I was going to say is that we do expect there is going to continue to have to be a way to resolve the issues. Unfortunately, it may end up having to go to court, and that will cost a tremendous amount of resources, yes, absolutely.

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

Thank you.

[The Chair, Conservative, Chris Warkentin]

We'll move now to the final questions.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you, Chair, and thank you to all the witnesses for your very interesting testimony.

I find the whole issue quite confusing.

My first question is for Commissioner Haggard. You indicated that in your view—and I agree with your view—that it's not the role of the committee to draw lines on a map. I think we all agree that lines on a map, in a perfect world, would be negotiated and there would be some sort of consensus.

But we live in the real world, and in the absence of consensus, in either your view or in the view of the commission, whose role is it to draw the arbitrary lines?

[Dave Haggard]

I believe it's the role of the first nations to come to an accommodation with each other in the disputed territory, whatever that territory is and however many nations are involved in it. That's what we have been attempting to do.

Whatever body that is, I believe there should be some way to compel first nations to that set of discussions, and, if necessary, to have some ability to create a binding solution, whether or not it's a binding mediated solution, in my view. Now I'm not sure we can ever get there, but that would definitely resolve the problem.

But you have to get all the nations in British Columbia to agree to that type of a process before we can start to address it.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

In this specific issue with respect to overlapping lands, I understand there was a mediation process in place, and the mediator at one point walked away because it was hopeless, in his view; the parties were too far apart.

We all agree that consensus is the most desired outcome, but in the real world, where that can't always be accommodated, who, in your view, should be charged with drawing arbitrary lines in a situation when a meeting of the minds is just simply impractical?

[Dave Haggard]

You don't have to draw lines. What you have to do is find a solution for how you're going to deal with the territory in the disputed areas.

In Toquaht in Maa-nulth, what they did was create a joint committee that meets once a year, or more if necessary, to decide what activities will take place in that disputed territory, whether it's fishing, gathering, hunting, or economic development. They can do it together or agree that one or the other nations can do it in that territory.

It was an overlay of territory right on top of the other one.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Does the creation of that mechanism fall under the mandate of the BC Treaty Commission, or, in your view, does it fall—or ought to fall—under the authority of some other governing body?

[Dave Haggard]

You heard Chief Hall say that there was a resolution going to the summit that may deal with creating another organization. Or if it were done through the treaty commission—all of which is possible—you'd have to come to an agreement with the first nations and the two levels of government.

Number one, somebody has to fund it. Number two, you have to come to a consensus and an agreement on how it's going to be activated and how it's going to come to a final and binding conclusion in those territories.

You can do it in either one of two ways: find another outside body and create a new body, or I believe you could do it under the BC Treaty Commission.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you.

Chief Commissioner Pierre, we heard in the first hour that the Stó:lo community believes that Yale is actually a subset of the larger Stó:lo community. In fact, the words the Grand Chief used were that it is a small portion of a large family. Does the BC Treaty Commission accept that proposition?

[Sophie Pierre]

It's not up to us to accept it or not accept it. The way the process was set up—and it was set up by the first nations themselves—was that first nations would come forward, identify themselves and their statement of intent, and that's when the BC Treaty Commission got into the act with the six stages.

So it's not really the BC Treaty Commission that will determine whether or not a first nation comes forward and says they're a first nation. It's not our determination whether or not we accept that is the case, and whether they're part of a larger group or they are individual unto themselves. That process was set up by the first nations summit.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

I accept that it's not your mandate to determine what is included in a first nation, but do you know, anecdotally or otherwise, if there's support through judicial decisions or through other...? Is there support for the proposition that Yale is a subset of Stó:lo in any other mechanism or judicial authority that you know of? Is that contention supportable?

[Sophie Pierre]

I don't know that it matters.

[Dave Haggard]

It doesn't matter.

Maybe I can use a different example. The Nuu-chah-nulth Tribal Council is made up of 14 tribes. They're all one, they all speak the same language, but they move. Sometimes Tseshaht is made up of so many people from Huu-ay-aht, so many people from Kyuquot, and they call themselves Tseshaht. They're part of Nuu-chah-nulth, but they call themselves Tseshaht. Who am I to tell them they're not? Or you, or anyone else? And that's no different for Yale and Stó:lo. Yale has moved forward as a separate nation, and we believe, because that's what was decided by first nations, that they have that right.

[Mark Smith]

Perhaps I could also add that there is some legal discussion in the Tsilhqot'in case in the Court of Appeal affirming the right of a nation to self-define. The UN declaration also speaks to that principle of self-definition and self-determination.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you for your answers, although I tend to be more confused than I was when we started.

Thank you.

[The Chair, Conservative, Chris Warkentin]

Thank you, Mr. Smith, Commissioner Haggard, Chief Commissioner. We want to thank you for your work and your willingness to come here today to bring testimony and answer questions.

Colleagues, we will now adjourn. The bells are ringing.