Indigenous and Northern Affairs Committee on June 4th, 2008

[The Chair, Conservative, Barry Devolin]

Order, please.

Good afternoon, everybody. Welcome to this, the 32nd meeting of the House of Commons Standing Committee on Aboriginal Affairs and Northern Development.

For those of you who have been waiting since 3:30, I apologize for the delay from the members. We were busy voting in the House. We got here as quickly as we could.

Minister, I appreciate that you initially were scheduled from 3:30 to 4:30, but if we could push that another 15 minutes until 4:45, we could have 45 minutes for you and then 45 minutes for our next witness as well. That would allow us to finish by around 5:30.

Today we are meeting, pursuant to the Order of the Reference of Monday, May 23, 2008, regarding C-34, An Act to give effect to the Tsawwassen First Nation Final Agreement and to make consequential amendments to other Acts.

I would like to welcome the minister, the Honourable Chuck Strahl.

I understand you have an opening statement, sir. The floor is yours.

[Chuck Strahl, Conservative, Minister of Indian Affairs and Northern Development and Federal Interlocutor for Métis and Non-Status Indians]

Thank you.

I'm joined here by officials who will be pleased to help the committee and me answer any questions.

It's a delight to be here today, Mr. Chairman and committee members, and I want to thank the committee members from all parties for their support for this landmark legislation.

The fact that committee members of all political stripes recognize and endorse the merits of this act speaks volumes about our shared commitment to complete the unfinished business of settling treaties with First Nations in British Columbia.

This same spirit of reconciliation characterizes the negotiations over the past 14 years. Some confusion seems to exist as to whether or not the broader public has been consulted on this legislation. In fact, I'm happy to report there were more than 70 public consultations and 28 information sessions conducted as we worked our way toward this settlement. This process has enabled everyone to have the opportunity to make their voice heard. The agreement has received widespread support among local governments, the business community, the media, and citizens.

This success underscores that comprehensive treaties are possible when all parties work together in good faith. The final agreement reinforces that reconciliation between aboriginal and non-aboriginal Canadians is best achieved through negotiation rather than through litigation and conflict, and this is the only way we can hope to establish a new relationship based on mutual recognition, respect, and trust.

Mr. Chair, despite the strong support for this legislation, there are lingering misconceptions about it, which I would like to correct today. These misconceptions do a disservice to the Tsawwassen First Nation and the governments of Canada and British Columbia, all of whom negotiated in good faith to achieve this settlement, and to all Canadians committed to justice and reconciliation with first nations.

For instance, it should be clarified that under this agreement the rights of non-members who live on leased land on the reserve will be protected. The final agreement includes numerous provisions that ensure that the rights and interests of non-member residents are protected. Non-members who live on treaty lands will be consulted on decisions that affect their interests. They will also have the same right of appeal and review procedures as first nation members. The result is that non-members living on treaty lands will have considerably more influence in Tsawwassen governments than they have had in the past. Similarly, the rights of Tsawwassen members living off-reserve are fully protected under this bill. They have the same democratic rights and the means to exercise their individual rights as resident members.

Not only are these assurances enshrined in the legislation, they are guaranteed under the Canadian Constitution and the Charter of Rights and Freedoms, both of which apply to the Tsawwassen First Nation government in all matters.

Likewise, there have been misleading interpretations of the tax provisions of this bill. For the record, the legislation will only provide the Tsawwassen government with tax authority over Tsawwassen members living on treaty lands. It is true that leaseholders will continue to pay property taxes to the first nation, but that is already the case now, and most of these people have done so for years. However, other tax matters covered in the legislation will not in any way affect the rights of non-members or their access to public services and benefits.

Mr. Chair, while it is important to set the record straight, it's critical that we not lose sight of the countless benefits of reaching a fair and final settlement with the Tsawwassen First Nation. As you and your members have examined this bill closely, you are aware of the very real and meaningful improvements it will make in the lives of the Tsawwassen people and their neighbours in the surrounding areas.

The greatest advantage of Bill C-34 is the certainty it achieves related to Tsawwassen authorities, land and natural resources. Outstanding questions about the place of the Tsawwassen First Nation within the province are settled once and for all.

With this certainty come solutions to long-standing problems that have prevented the first nation from building a sustainable economy, creating jobs, and enhancing living standards for its members. Once it is finally free of the antiquated Indian Act, the Tsawwassen government will be able to put the settlement funds to work by investing strategically in social and economic development projects that create opportunity and increase self-sufficiency.

As Chief Kim Baird has said of the treaty, “It gives us the tools to build a healthy community and the opportunity to participate fully in the Canadian economy.” I can think of no one more capable of seizing this potential than Chief Baird. She is a remarkable young woman of vision and talent. It's no surprise that her name was on the Caldwell Partners 2007 list of the top 40 achievers under 40 in Canada for her many impressive accomplishments.

Ultimately, the Tsawwassen treaty is fair to all Canadians, as it has carefully considered and balanced the interests of all parties with a stake in this settlement. Take the example of the fishery. The agreement ensures that the first nation will have access to fish for food, social, and ceremonial purposes. But this provision is subject to conservation, public health, and public safety considerations. It's a balancing act.

The treaty provides for the integration of Tsawwassen First Nation into the metro Vancouver regional district. Tsawwassen will participate in regional planning and decision-making, and will contribute financially to regional district operations. Tsawwassen land use decisions will be bound by the same obligations that apply to other local governments.

The final agreement contains provisions related to overlapping claims by other first nations. The treaty contains specific provisions to safeguard the rights of other first nations, and this has led to widespread support among them for the Tsawwassen final agreement.

This historic settlement is truly cause for celebration. It represents an important step in restoring the proud heritage of the Tsawwassen people. Just as crucial, it's a giant step forward in aboriginal and non-aboriginal relations. This is the first urban treaty south of 60 in Canada--something that would have been inconceivable even a decade ago.

It wasn't always easy. But at the end of the day, all sides demonstrated a genuine desire to put the past behind them and discuss a broad range of issues of mutual concern in an open, cooperative fashion in order to achieve a better future.

As much as the provisions contained in this bill bring the promise of opportunity and prosperity to the first nation, the Tsawwassen final agreement is testament to the renewed respect and spirit of reconciliation on the part of the Tsawwassen people, British Columbians, and all Canadians, as we discover new and productive ways to live in harmony together.

This is an extraordinary accomplishment that deserves the full backing of all parliamentarians. I hope that I will be able to continue to count on your support as we move this groundbreaking legislation forward.

Thank you.

[The Chair, Conservative, Barry Devolin]

Thank you, Mr. Minister. And thanks for being here today.

If some of the members of the committee look a little tired today, it's because we spent the last two days in Canada's north, in Nunavut. We visited both Iqaluit and Pangnirtung in the last two days. We got back last night before midnight, but they were two long days. We had a great trip, saw a lot of important things, and could see how to move forward.

So it's great to be here today talking about something that's happening on the west coast of Canada, whereas yesterday we were on Canada's north coast.

Colleagues, we have about half an hour, so we will have time for one seven-minute round of questioning. I encourage my colleagues to not speak for five or six minutes and then load half a dozen questions onto the end. I will have to stick to the seven minutes, and I will be giving a one-minute warning.

I will begin with the Liberal Party.

Ms. Neville, you have seven minutes.

[Anita Neville, Liberal, Winnipeg South Centre, MB]

Thank you very much, Mr. Chair. I'll be sharing my time with my colleague from Nunavut.

Thank you, Minister, for being here. And thank you for a very positive overview of the agreement, both its challenges and its accomplishments. I certainly appreciate it.

We know that it began in the fall of 2002, was ratified as an agreement in principle in March 2004, and moved to final ratification last November.

My question is really about the implementation of the treaty. We know that the AG has reported on the challenge of implementing a modern, comprehensive land claim agreement. How will your department monitor whether and how Canada will fulfill its obligations? Has funding been set aside and have the human resources been allocated for such?

[Chuck Strahl, Conservative, Chilliwack—Fraser Canyon, BC]

This is an excellent question. I think Canada has learned quite a bit over the last number of years about modern treaty-making, and that's why there is much more detail in the Tsawwassen agreement than in some previous agreements. There is some specificity, for example, on the duty to consult. Although government is developing a more broad agenda on the duty to consult, within the agreement itself it specifies certain areas where the Tsawwassen First Nation must be consulted. There are provisions on how they will participate in local governments, the manner in which it will take place, how that person will be selected, and so on. There is much more detail on that.

Since it's an urban treaty, I think some of the benefits are more tangible and obvious. Because it's in an urban setting...well, I won't say “go fishing”, because fishing is also part of it, for food, ceremonial, and social purposes. But you don't have to look far to see what some of the obvious benefits are.

A lot of the details are within the documents themselves. There is lots of detail on how it's to be implemented. There are provisions in the treaty on dispute-settling mechanisms and so on--which we hope never to have to use, but they're in there, again with some detail.

If there were something specific, I could pass it over to our negotiator to talk about, but in a general sense that is why it's a good treaty, because of the degree of specificity within the documents themselves.

[Anita Neville, Liberal, Winnipeg South Centre, MB]

What I'm concerned about is the implementation of it, and how you're going to be monitoring that.

[Chuck Strahl, Conservative, Chilliwack—Fraser Canyon, BC]

I'll get Tim Koepke to answer that. I don't know if I can answer that with regard to the treaty itself.

[Tim Koepke, Chief Federal Negotiator, Department of Indian Affairs and Northern Development]

I think maybe the best answer to the question, Mr. Chair, is that these are difficult agreements. They are complex, and to some extent one needs some flexibility to test drive them.

I come from the Yukon experience, where a different approach was taken to the original implementation costing and estimating. It's no secret that there have been some challenges to see the first nations in Yukon adequately implement their treaties.

The department has moved since that time—we're talking now about almost 15 years—to an activity-based costing model, which allows a little more flexibility. Given that these financial undertakings are not part of the section 35 constitutionally protected document, it allows some flexibility for the parties to assess at renewal time how the treaty is performing, whether or not it's achieving the objectives. If there are adjustments to be made, then those can be taken into account.

So it's part of getting onto the learning curve in the modern treaty world, if that helps to answer your question, Mr. Chair.

[Nancy Karetak-Lindell, Liberal, Nunavut, NU]

I have a very quick question, and thank you for the opportunity.

I had a chance to debate this in the House of Commons when it came up for debate. One of the points that someone kept making was that people who are not living on this reserve would be making decisions for people who live on the reserve.

I think I know the answer to this, but I'd really like you to comment on that as one of the myths, maybe, surrounding this agreement.

[Chuck Strahl, Conservative, Chilliwack—Fraser Canyon, BC]

Certainly.

It is a myth, of course. There are provisions based on well-established court precedents in the Corbiere decision and others that clearly say the Tsawwassen First Nation has an obligation to listen up, if you will, and allow for the participation of members who don't happen to live on reserve.

It's the same thing, if you think of it, for Canadians. If a Canadian is working in--pick a country--Venezuela drilling for oil and they happen to be living there, they don't lose their Canadian citizenship. They have, I hope, an obligation but certainly the privilege of voting and participating and realizing benefits from Canadian health care systems, the benefit of paying taxes, if you will, and the benefit of knowing they're Canadian in the long term. Just because they don't happen to be resident in the country at a moment doesn't change their status.

[The Chair, Conservative, Barry Devolin]

You have one minute.

[Chuck Strahl, Conservative, Chilliwack—Fraser Canyon, BC]

It's the same thing for first nations. Not only has the court established that clearly, but it makes common sense that you would listen to everyone who is a member of your first nation, not just those who happen to live there that day.

[Nancy Karetak-Lindell, Liberal, Nunavut, NU]

But isn't it also a court case that gave the right for people living off reserve to be able to participate in activities on their reserve anyway? It's not just a policy that someone made up.

[Chuck Strahl, Conservative, Chilliwack—Fraser Canyon, BC]

You're right. It is based on a Supreme Court of Canada decision, Corbiere, as I mentioned. They said in the decision that the “ordinarily resident on the reserve” voting requirement of section 77 of the Indian Act violates subsection 15(1) of the charter, that it's not justifiable.

In other words, as Madam Justice McLachlin said,Off-reserve band members are...co-owners of the band's assets. The reserve, whether they live on or off it, is their and their children's land.

Of course, we respect the Supreme Court decision on that. Again, I think it makes common sense as well as being legally clear.

[The Chair, Conservative, Barry Devolin]

Thank you, Minister.

Mr. Lemay, you have seven minutes.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Welcome, Mr. Minister.

Of course, I have carefully read the bill and the records of all the debates. I know that, for some people, this bill is not as important as others. But I see it as probably one of the most important bills of this session of Parliament, because it is going to open doors.

In that context, you said: "This is the first urban treaty south of the 60 ^th parallel in Canada..." Clearly, it is a first step. I have always said that it is easy to negotiate a treaty over uninhabited land containing nothing but lakes and mountains. At least, it can be. There are factors to take into consideration, of course.

Without asking you to break the seal of the confessional, could you tell me if any other negotiations with First Nations south of the 60 ^th parallel could be based on Bill C-34? Could we use this bill with the Mohawks in Caledonia, the Mohawks in Châteauguay or the Hurons in Wendake in Quebec, and, if so, in what way?

[Chuck Strahl, Conservative, Chilliwack—Fraser Canyon, BC]

In a general sense.

The best example of a modern urban treaty is in British Columbia. But other treaties are being negotiated at the moment. The Maa-nulth Treaty has been ratified by the First Nations, and other treaties will soon be signed in my constituency, I hope.

What I have always said on the Tsawwassen agreement is that perhaps the Tsawwassen agreement is an excellent example of why there is no one template that will fit any other first nation. This is a very unique situation for Tsawwassen, and that's why it's hard to find a template that says, “Let's just take the Tsawwassen example and plunk it on Wendake and hope it works.”

This is very unique. It involves the Metro Vancouver governance system. It involves fish because of the tradition and the economic opportunity. It involves hunting and gathering in an area that's now urban or stretches off from urban into rural areas. It's quite complex, but it shows that it can be done even when it is difficult.

So I invite other first nations to look at it, and I just want to assure them that it doesn't have to be a cookie cutter. It doesn't have to be exactly the same. But perhaps there are principles in here that show that even when it's complicated and even when there's a lot of history behind it, if they're interested, we're interested.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

I know that members of Parliament are independent and that, in some matters, they can vote according to their conscience. Still, I was surprised to see that two members from your party voted against this bill. Even more surprising was the fact that one was the member for the constituency in question. I have a problem with that. Well, perhaps it is not going to be a problem for me, but it certainly is for you. I did not understand why that member voted against the bill and I still do not understand it, despite the explanations that I have been given.

How are you going to ensure that rights are respected by the local community? What are you going to do to make it clear that the First Nation had and continues to have the right to reap the rewards of Bill C-34? It seems to me that it might be difficult, especially within your own party.

[Chuck Strahl, Conservative, Chilliwack—Fraser Canyon, BC]

I don't think there's much doubt about the support that the Tsawwassen final agreement has in Parliament. The vote is overwhelming, and the support from this committee and others is strong. The government, of course, was there for the final stages of the agreement, but this thing now spans more than one federal government, and--including opposition parties--has all-party support.

I could wish other legislation would have such broad support. My goodness, if I could get this on other bills that we brought forward, I'd be a happy camper.

So it has broad support. But in reality.... In my remarks, I mentioned the broad support. I have letters from chambers of commerce and other local governments nearby and so on, but I'm not pretending it's unanimous. There's always going to be someone who says, “This is a change.” And change always means that someone can find a reason to hang their hat on it and say, “This is different from the way we used to do business.”

Again, the big, important change here is the certainty that it brings to the Tsawwassen First Nation and the certainty that it brings for all other Canadians. I can tell you in a general sense this is why the Government of British Columbia enthusiastically supports this bill, that's why our government enthusiastically supports it, and I think that's why the Tsawwassen residents and members voted so strongly in favour of it as well. It's because it brings economic opportunity and certainty to us all, and it brings a sense of reconciliation between people who otherwise are going to end up in court in a difficult, difficult battle that would not bring any of the above.

I think we're on the absolute right track for all the right reasons. It's not only an historic moment but a delightful moment, in our opinion, to move ahead with this bill. Thank you.

[The Chair, Conservative, Barry Devolin]

Thank you, Minister.

Ms. Crowder, you have seven minutes.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Thank you, Mr. Chair.

Thank you for coming, Minister. I think this is an important day for celebration because the Tsawwassen people have been waiting for a long time for this day. I applaud the government for moving on this initiative.

I have, of course, a couple of questions. I was actually pleased to hear you say that this agreement is not intended to be a template or a cookie cutter, and I know that Chief Baird herself has said that this is an agreement for the Tsawwassen people and is not intended to fetter any other people.

Back in January we had some discussions around funding that would look at the transition-to-treaty work plan and timelines. I understand that there were some challenges in that the band found itself in a financial limbo; it was no longer in the treaty process but didn't have additional funds to look at the transition-to-treaty work and the timelines.

I wonder if you could update the committee on whether additional funds were provided to do that transition-to-treaty work plan and timelines.

The second question I have is also, of course, around money. I know that many of the neighbouring nations have had a good working relationship with the Tsawwassen, but the Penelakut people who live on Kuper Island, in my riding of Nanaimo—Cowichan, seem to understand that they had been promised $15,000 to continue to do a consultation process with the Tsawwassen. Then they received a notification from INAC that they were only going to get $10,000. Of course they have already committed $15,000.

I wonder if you could talk about whether there was funding available for other nations--in terms of the consultation process with the Tsawwassen--around some overlapping jurisdictions.

[Chuck Strahl, Conservative, Chilliwack—Fraser Canyon, BC]

I'll get Anita to answer your first question. In response to the second, though, we are providing funding and will provide funding for consultation in dealing with overlapping claims and doing historic research or discussing issues of cultural importance. Normally it's based on a work plan that's mutually approved. Before we fund, we don't have a per capita fund or consultation. But it's based on a work plan that's agreed to by our local staff and worked through.

Anita, could you expand on that and answer the first question as well?

[Anita Boscariol, Director General, Negotiations - West, Department of Indian Affairs and Northern Development]

With respect to consultation funding, we deal with that by inviting first nations who believe they may have an overlapping claim with the Tsawwassen final agreement, or who believe the agreement could impact on the aboriginal rights and title that they have, to make an application, if required, for funding to have the opportunity to review the treaty and see whether or not it has an impact.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Maybe I can follow up with the minister later, because I have documentation from a meeting on January 16 that suggests a difference in understanding about the amount of money assigned.

[Tim Koepke]

I have attended three meetings with the Penelakut, and I can confirm that they have been paid the full $15,000 that they were originally promised. These were cost-shared initiatives and both governments had to agree. Supplementary consideration has confirmed that to them. They were advised about three weeks ago.