Indigenous and Northern Affairs Committee on June 4th, 2013

[Carolyn Bennett, Liberal, St. Paul's, ON]

Thanks very much.

Obviously in your work you need to feel that there is some integrity to the process, but am I hearing from you that you think the mandate and the process are perfect right now, or do you think there need to be some changes, particularly around the issue of a strength of claim, who gets there first, and the real ability to put some pressure on the negotiation around overlapping or shared territory?

[Sophie Pierre]

There is a lot of work that needs to be done with the different parts of the process. I think what we created in British Columbia in 1992 is a framework that can work. There are parts of it, over the years, that have deteriorated.

When I first came on as chief commissioner, I described the process similar to what Grand Chief Doug Kelly just said earlier, that it has become a program. One of the very first things I said, as the chief commissioner, was that we needed to change that and we needed to bring some life to the negotiations so that they were actual negotiations.

We are looking at first nations to have self-sufficiency and self-determination, and governments and first nations are looking for certainty. Then there had to be a way to ensure that does happen, not just a rehash of what's there. We're talking about building something new, about giving authorities to first nations so that they can then become self-determining.

Yes, there are changes, and we've made many recommendations. In fact, just shortly after the meeting with the Prime Minister that our national chief had, we immediately sent off a letter to the Prime Minister's office making four recommendations on some of the changes that needed to be...and they started right off with the mandates of the federal government.

It's not a perfect process, but the framework we have created is something that can work if we all put our minds to it.

[Carolyn Bennett, Liberal, St. Paul's, ON]

What were the four recommendations? Can you provide the clerk with a copy of that letter?

[Sophie Pierre]

We certainly can. We can also provide the clerk with a copy of our latest quarterly report, which has just come out.

The very first point is something we've been saying for the last two years that we've been coming to Ottawa.

By the way, when I became chief commissioner in 2009, we immediately made it a priority to come to Ottawa. In fact, the very first meeting we had was with the pre-budget Standing Committee on Finance to talk about considering the investment that all of us as Canadians have put into this process, and that we need to start seeing some return on that investment by having treaties that are actually settled, unleashing the economic ability of first nations to become great contributors to our country.

We've been saying that we need a directive specifically around section 35. It's a part of the Canadian Constitution, the highest law in the land. It's very clear that we need leadership directly from the Prime Minister's office to give some legs to section 35.

We found that because everyone was thinking about the process like a program, the various ministries were forgetting that this comes right from the Canadian Constitution. In fact, the policies of the department of national parks do not supercede the Canadian Constitution. Parks has to be at the table in negotiations, but they were taking the position that they're not at the table because their act supercedes that of Indian Affairs. It probably does, but it doesn't supercede section 35 of the Canadian Constitution.

That's our first recommendation, that we need that directive from the Prime Minister on section 35. When we had our meetings with Parks, with Defence, and with others, we asked how they were ensuring that the federal government was meeting its responsibilities under section 35. It was a question they had not been asked to answer for a very long time.

Secondly, there are some first nations that are not going to “re-treaty”. We know that the federal government just last year was involved in an assessment, and the first nations themselves are getting to the point where there's a lot of frustration. There needs to be an exit strategy. Right now, either you negotiate or you've racked up a $10 million debt, and then everybody is just kind of at a standstill. The first nation is frustrated because the mandates they're looking for from the federal and provincial governments are not brought to the table, so they can't move ahead. We need an exit strategy for that. We need to get serious about an exit strategy.

There are opportunities here to actually talk about some of those mandate issues that are frustrating the process, mandate issues like own-source revenues. I believe the last time we were here we talked about why own-source revenue is so important and why we need to talk about that. The federal government's position right now is that it's not on the table. That's not really how you negotiate.

There are reasons that own-source revenues needs to come back to the table. Own-source revenues like fish.... We haven't had a mandate on fish since I started, nor for a couple of years before I started. We need to have that. There were others, like taxation. These are issues that need to have sober second thought, if you will. We have a group of people right now working on it.

The federal government also said that “certainty”, “extinguishment”, and that kind of language...when we first started, all of that stuff wasn't on the table. It is on the table, we are talking about it, and we've been able to find ways of resolving that. We've got this technical working group, and we're suggesting that they also be given the opportunity to look at these other issues, like taxation, own-source revenue, fisheries, etc.

The last one was in terms of interim measures. There need to be more benefits going out to first nations who have been at the table for the last 18 to 20 years negotiating. Benefits need to be going to them. The federal government needs to be a real partner in that, and they're not right now.

Those were the four recommendations.

Sorry I took so long in saying that. I get kind of carried away with this stuff.

[The Chair, Conservative, Chris Warkentin]

Well, you've lived it, so we appreciate your wisdom in this.

Mr. Clarke, we'll turn to you now for the next round of questioning.

[Rob Clarke, Conservative, Desnethé—Missinippi—Churchill River, SK]

Thank you, Mr. Chair.

And I thank the witnesses for coming in.

Earlier on, you mentioned the veto of one first nation. Could I get some further clarification on that? If the Yale final agreement is not passed, what impact will it have on the British Columbia treaty process?

[Sophie Pierre]

I think it sends out a clear message that when you negotiate a treaty and you've actually signed onto a final agreement, it's not a final agreement. Another party can come along and stop that from going ahead.

[Rob Clarke, Conservative, Desnethé—Missinippi—Churchill River, SK]

So what does the British Columbia Treaty Commission recommend for further resolution on overlapping first nations in general?

[Sophie Pierre]

Clearly we still have much work that needs to be done. We've made the recommendation that land and cash offers need to be made a lot sooner. We just get different positions at different tables about when land and cash are actually put on the table. It's hard to start having real substantive discussion with a neighbouring nation, or if you're all within the same language group and you're looking at carving out a piece of your traditional territory for a particular community, if you don't really know what land you're going to be talking about, because clearly it's not the entire statement of intent. When you place a statement of intent, it is a responsibility for that first nation to contact everybody around them and say, “This is our statement of intent”, and place that. In fact, when we do get requests from other first nations, we provide that information on what the statement of intent is.

But when it comes right down to what pieces of land are going to be in the treaty, the treaty table needs to know what the land and cash offer is, and it needs to come earlier than it does now.

[Dave Haggard]

If I could, I'll just add to that.

The two things, and we've been talking to the federal government about them, are resources and the ability to compel nations to come to that table to discuss the issue around overlap and shared territories. It costs a lot of money to bring nations to that table. If the treaty commission is going to do it, which we're currently doing under our current budget, we need to be able to bring people together like that and compel them to come. If you get three first nations at the table and there's still a fourth one out there that has a veto authority, then you don't accomplish anything. So somehow you have to have the ability to compel those nations to come to the table to discuss the overlapping shared territory issue.

[Rob Clarke, Conservative, Desnethé—Missinippi—Churchill River, SK]

In your previous statements to the committee, you had given us the content of concerns, as expressed by the Stó:lo, as being primarily connected to the stretch of the Fraser River north of the town of Yale in an area known as the primary five-mile fishery. You frame the concern as being a Stó:lo desire to allow access to traditional fishing sites in that area, to allow the Stó:lo members to continue fishing activities. The current position of the Stó:lo is that the accommodations made are woefully inadequate. They state that these accommodations do not address the proprietary interests of the Stó:lo to Yale reserves.

What is your view of the accommodations undertaken by the parties to the Yale final agreement, and by the Yale first nations, proposing a 10-year binding agreement on access to Stó:lo groups?

[Sophie Pierre]

The negotiations that Yale has completed include that particular area we're talking about. This is why we were encouraging the parties to come together and have a resolution on that. We understand the real complexity here, and the real difficulty. But if all best efforts have been made, then what? We're saying that when all best efforts were made and the three parties, the governments of Canada, B.C., and Yale, came together and agreed on a treaty, that particular negotiation was done in good faith. In particular, for Yale, they created a large debt in order to have these negotiations happen. At some point, it has to move forward; if it doesn't move forward, it is a veto. I don't know what else you can call it.

[Rob Clarke, Conservative, Desnethé—Missinippi—Churchill River, SK]

This is just a quick question. How many times have the Yale and the Stó:lo sat down at the same table and discussed these issues? Do you have an idea?

[Sophie Pierre]

I don't know.

Do you have any idea?

[Dave Haggard]

Four times that we have been involved in. Some of them didn't last long, some of them lasted longer, but we have convened meetings four times.

[Rob Clarke, Conservative, Desnethé—Missinippi—Churchill River, SK]

Thank you.

[The Chair, Conservative, Chris Warkentin]

We'll turn to Mr. Genest-Jourdain for the next round of questions.

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

Thank you, Mr. Chair.

I will now talk about some fairly technical issues involved in the contentious aspect of this treaty signing.

Witnesses who spoke before you told us about those noticeable tensions in the field. Section 2.12 of the Yale First Nation Final Agreement stipulates that the provisions of the agreement can be replaced or renegotiated if a court determines that they adversely affect the rights of other aboriginal peoples.

Do you think the agreement is referring to a court of first instance?

[Sophie Pierre]

Can you answer that?

[Mark Smith, General Counsel, Process Director, British Columbia Treaty Commission]

I believe it's the first-level court initially.

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

Okay.

Would an appeal of the trial decision have an effect on the enforceability of the initial ruling?

[Mark Smith]

I believe you would have to go all the way through the appeals for a final decision.

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

And those appeals can ultimately be carried all the way to the Supreme Court of Canada. Right?

[Mark Smith]

Yes.

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

That can take decades. A good example is the decision made in the Delgamuukw case. I submit this respectfully.

Let's now consider the contentious aspect of this treaty's ratification, as that's always key. The Yale First Nation Final Agreement also provides for a transfer of fishing allocations for various species of salmon—all to the benefit of the Yale First Nation.

Do you think the allocations attributed to the Yale First Nation will apply to other considerations and to the rights that could be exercised by other nations or individuals who fish in the region covered under the agreement?