Indigenous and Northern Affairs Committee on June 4th, 2013

[The Chair, Conservative, Chris Warkentin]

I call this meeting to order.

This is meeting 77 of the Standing Committee on Aboriginal Affairs and Northern Development.

I am recognizing Ms. Crowder, who I believe has a motion.

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

Thank you, Mr. Chair.

I do have a motion: that the committee initiate a study on the Yale First Nation agreement act, and that all testimony received under the study be deemed to have been received under the study of Bill C-62 once the bill will have been referred to the committee.

[The Chair, Conservative, Chris Warkentin]

Thank you. I appreciate that.

Not seeing additional speakers to the motion, let's go to a vote on it.

(Motion agreed to [See Minutes of Proceedings])

[The Chair, Conservative, Chris Warkentin]

Folks, in terms of the study that we now have under way, you have a budget before you. That is required for reimbursing our witnesses, who we have requested to be here.

If there aren't any questions with regard to it, we'll go to a vote on it immediately.

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

I so move.

(Motion agreed to [See Minutes of Proceedings])

[The Chair, Conservative, Chris Warkentin]

Thanks, colleagues.

I do apologize for that, but it's necessary housekeeping to ensure that we can continue on with our work.

We'll turn now to our study at hand. We are in the process of this study of the Yale First Nation agreement act.

Today it's our privilege to be joined by the Stó:lo First Nation, represented by Grand Chief and President Joe Hall. We also have Grand Chief Doug Kelly. Thanks, gentlemen, for being here.

We also have Jean Teillet. Thank you for joining us as well.

We'll turn it over to you for the first opening statements. Then we'll have some questions for you.

We'll begin with your opening statement, Chief Hall.

[Chief Joe Hall, Grand Chief, President, Stó:lo Nation]

Good morning. Thank you for the opportunity to present before the committee this morning.

As just a quick backgrounder, I've been involved in politics in the Stó:lo area for 32 years now, so I've seen a lot of things, I've seen a lot of changes, and I have to say that the current time and the initiative before you in the form of the Yale treaty is probably the most critical and terrifying one to the Stó:lo right now. The reason I say that is because of the issue that's in front of us and the fact that the Stó:lo people are people of the river. What this treaty, unfortunately, is going to do is it's going to take away or infringe on the rights of the Stó:lo. I don't think this is insignificant; it certainly isn't. Saying fishing is important to Stó:lo is like saying air is nice to have around. It's critically important to the Stó:lo people.

The Yale First Nation.... I want to make it very clear, and it is important for this committee to know, that Yale is a Stó:lo community, no ifs, ands, or buts. My colleague will probably elaborate a bit more on that, but they are a family member of the Stó:lo. They have the same rights; they are collective rights. What we're looking at is to ensure that those rights are continued to be shared among the Stó:lo. The Yale community, a community of 150 members, of which 60-some-odd voted in favour, are on the verge of receiving, through this treaty, controlling gatekeeper responsibility for a very critical fishing area in the Stó:lo territory. This will impact in the area of 10,000 Stó:lo, so you can see the significance of the issue before us.

Imagine, if you will, if the United States of America suggested for a moment that Ontario now is going to be governed by Saskatchewan and that's it. Anything Ontario wanted to do, they'd have to go to Saskatchewan to get permission. I'm trying to find an example where people can understand what we're saying here. This land is shared by the Stó:lo, including the Yale, and should not be given to one family of the Stó:lo for gatekeeper control.

Approximately 60% of all the fish caught in the Stó:lo territory are caught in the Five Mile Canyon area, and of the 77 fishing sites that belong to the Stó:lo people, only one of them belongs to the Yale. Yale has fishing sites south of the Five Mile Canyon area, but what this treaty will do is take those 76 sites away from the Stó:lo and/or put them under control of the Yale First Nation. This is significant, for the obvious reasons I mentioned before.

I need to say this, and I don't want to use up too much of my time on details, but when I talk about the Yale First Nation being a member of the Stó:lo...unfortunately, B.C. failed in recognizing the magnitude of the dispute that's in front of us. They suggested that they were improving access to the Stó:lo by suggesting these were Yale reserves. They were first nations villages that were in the Yale electoral district, and they were called Yale first nations, but history, unfortunately, has not been shared with all of the members who are involved with voting on and enacting this treaty. They have bought into the fact that these reserves belong to them, when that is not the case. If Canada were to check their records, they'd see that it was set aside for the Indians in the Yale district, and all the Stó:lo. That in itself has created problems, because it's going to lead to alienation of lands, alienation of the ability to access the fishing sites.

We all know that treaty had a primary purpose, and that was to provide certainty not just for the governments, but also for the first nations as well. It was also to provide peace and harmony. This treaty does the exact opposite.

I want to make sure you understand that I am personally involved, as my colleague, in negotiating Treaty 7 for Stó:lo. We are in the treaty process, and we are attempting to achieve a final agreement with the governments of Canada and British Columbia. We feel there is an opportunity there, notwithstanding that there are some challenges that we're going to have to overcome. Nonetheless, it's the only game in town, and we're going to continue to pound away at it until we get something that is going to work for our people, not just our people in treaty, but also our brothers and sisters, the other Stó:lo.

Our approach is significantly different from the one before you today. I honestly feel that if we were given the time and the adjustments and amendments to this treatment, we could support the agreement in that fashion. We support Yale in their attempts to get a treaty, we supported Tsawwassen, and we support In-SHUCK-ch. All of these groups are on our periphery, sharing the boundaries of our particular core territory.

We're not anti-treaty. People would paint us as being anti-treaty, but that's not the case at all. We're in treaty negotiations.

One of the principles that the B.C. treaty-making process was founded on was that outstanding land disputes were to be resolved before Canada and B.C. entered into legislation to approve these treaties. Unfortunately, that has not happened. This is one of the fundamental flaws that has come to create the situation now, where we're before the standing committee.

There have been land disputes in the world, history has shown, and obviously there will continue to be land disputes. Resolution of these disputes must take place at the negotiating table. I fear, as I mentioned before, the terrifying experience that's on the horizon for us. There has been conflict on the river; there has been bloodshed on the river. This is a serious issue. The Stó:lo have a long history of protecting their rights and titles, and quite frankly, I don't think that history has been removed from the minds of people. There have been battles on the river and on the railway lines. The Stó:lo are not going to sit back.

This is why our group here spent a tremendous amount of time at different meetings trying to resolve this issue. We have been doing this for the last 10 years, ever since the concept of treaty has been moving forward with the Yale First Nation, but to no avail. We've used every opportunity and followed every policy rule. We're here today as well with the hope that this still could be resolved. We will continue to try to negotiate a settlement of these issues in this room or in other rooms, with the government as well as with the Yale First Nation.

There is an opportunity, we believe, to correct this and prevent the type of confrontation that is not intended by the treaty-making process. We have suggested, for the last five years, some of the ways this could be corrected. We know a precedent has been set with respect to carving out sections of the treaty until they've been resolved. Canada has done that, and it needs to do that again. I'm afraid that the conflict between the Stó:lo and the Yale First Nation is going to spill over into other areas, with respect to the governments and—I hope not—businesses. That's what we're here to try to prevent. We're working diligently. There's been unprecedented mobilization of our people to ensure their rights are protected, something I haven't seen in 32 years. It is not going to be fun to experience, to go through that again, because we have had flashes of issues. That's why I am using the word “terrifying” in relation to the direction we're going.

This is ultimately, and I can't characterize it any differently, theft of our lands and an attempt to try to transfer these lands to one of our other sister organizations. It is more than a fisheries issue. It is not simply an access issue. There are aboriginal rights and titles that are being infringed here. What I'm speaking of is the fact that this area has long been occupied by the Stó:lo. It wasn't until the gold rush and the railways and the highways that people actually moved, but we always went back there for our fishing.

While B.C. failed in that regard, to take the time to understand the issue, Canada has an opportunity to look at this and make a determination as to whether this is the right thing to do, under the concept that the treaty was there to create a harmonious relationship with the Stó:lo, or with the aboriginal people, or among themselves. I think that while they failed, Canada has an opportunity here. To do otherwise would make the Prime Minister's apologies and the statements of a renewed policy on the comprehensive claims process hollow. It would make all those comments hollow, because in essence there was an opportunity for people to step back and say, listen, let's let this comprehensive claims policy run its course, because there are some significant issues in the comprehensive claims policy that would help resolve the issues we're facing today.

But this race to conclude a treaty has usurped that, and it is going to create unprecedented conditions in British Columbia, as many other first nations are attempting to achieve treaty, if it's seen that history doesn't play a role in treaty-making. Other first nations communities in the province right now are rallying because we have been informing them of our situation. They too will be facing the same challenges, and they will be here before standing committees in the future as well.

I again want to reiterate that we have attempted to follow every single process that the BC Treaty Commission has developed for us, and we have attempted on many occasions to consult and work with the first nations—but to no avail. There were some close moments when mediation was established by the federal government. There was a recommendation made to us by the mediator that we thought was going in the right direction, but when you have one party that has already entrenched themselves in a position because they've had a sign-off from the province and the feds, how can you have open discussions and negotiations to find a resolution when they constantly play that card or refuse to come to the table?

I'm going to stop there. I don't want to use up all the time of my colleague.

[The Chair, Conservative, Chris Warkentin]

Grand Chief Kelly.

[Chief Doug Kelly, Grand Chief, Stó:lo Tribal Council]

Good morning.

I was there in 1992 when then Prime Minister Brian Mulroney, Premier Mike Harcourt, the first nations summit leadership of Grand Chief Edward John, the late great Chief Joe Mathias, and Miles Richardson signed the agreement that created the BC Treaty Commission. I was a witness to that ceremony. I was very excited that through good faith negotiations we would resolve the outstanding land question, that we would create certainty, that in the creation of certainty we would create economic opportunity, and that we would realize social justice. That was in 1992.

Two treaties have been completed since then—two. Now we're looking at a third, and I have to ask, are you achieving certainty? Are you achieving social justice? Are you creating economic opportunity? The short answer to all those questions is no, we are not. It will not.

I'm told there are rules about language. I'm going to read two excerpts that I did not have time to get translated into French. They are from an article in the Chilliwack Progress, published Wednesday, August 17, 1938:

Over the burial site of many generations of Indians, a white cross now stands blessed and dedicated, at Yale, B.C., following a picturesque ceremony on Eayem reserve Sunday afternoon. Archbishop W. M. Duke carried out the dedication, watched by taciturn bucks in high-crowned hats, and squaws in shawls and gay velvets.

The language is pretty telling, very insulting and very racist. I'm here to tell you that racism still exists today. It exists in this room. It exists in the Department of Indian Affairs. It exists in the Department of Fisheries and Oceans. It exists where I live in Chilliwack. That same attitude is alive and well. People may frown at the terms used in this article published in 1938, but the colonial thinking has not changed.

The closing of the article says:

The cross bears the inscription: ‘Eayem Memorial 1938 AD, Erected by the Stalo Indians. In memory of many hundreds of our forefathers buried here, this is one of our six ancient cemeteries within our five mile Native fishing grounds which we inherited from our ancestors. R.I.P.

You should ask yourselves where that memorial is today. Where is it? There's a picture of it. I'll tell you where it is. It's on the banks of the river. The Chief of Yale took a backhoe and destroyed the sacred monument. It put a lie to his story that he's not Stó:lo. I'll share this with you when I comply with your rules.

The Seabird band was made a band of Indians in 1958. Before 1958, it was a reserve held in common by seven Indian bands, including Yale. Those bands agreed to give up the Seabird reserve to create the Seabird band of Indians. The second elected chief of Seabird Island was Alfred Hope, grandfather of the current chief of Yale. Why that chief would deny his ancestry is beyond me.

In 1992, the government of the day launched the aboriginal fishing strategy. I negotiated the arrangements on behalf of the Stó:lo. I'm a little younger than Joe, but I've been working since 1980 for my people. Later this month I'll be 53. So it has been 32 years for me, too. I negotiated those arrangements. Soon after, we had an agreement with the Department of Fisheries and Oceans, the Government of Canada, whereby we would be permitted to sell a portion of our catch without fear of prosecution.

Bob Hope went to court. He went to court to gain exclusive control of the five-mile fishery. He lost. I have to tell you, it was really strange sitting in that courtroom watching the Department of Justice lawyer, who was often in court against us and prosecuting us for fisheries offences. That same Department of Justice lawyer was standing up there defending our right to fish in the canyon. Rich with irony.

We're here today because Indian agents, with that same attitude of racism, didn't bother to do a little bit of due diligence. They didn't bother to do a little bit of homework and find out who they were dealing with. All they had to do was a little bit of research and they would have discovered this article. If they had looked at their own lands records and the creation of the Seabird band, they would have realized that this notion that Yale is not Stó:lo is a no-go. They would have known then that we're dealing with a family of 10,000, and while the rules permit Yale to proceed under the BC Treaty Commission, Yale is a small parcel of a very large family.

I agree with my brother Joe. We're not opposed to Yale securing a treaty. We have no issue with Yale pursuing a treaty. What we're concerned about is our section 35 rights. It's the highest law of this land. We have constitutionally protected rights that have been confirmed by the court. It has been argued by the Department of Justice that it's a right that belongs to us and it belongs to our citizens. It belongs to our families. It's a communal right. It doesn't belong to an Indian band; it belongs to the people.

I was so excited. I am one of those who support our national chief, Shawn Atleo. I'm one of those who supported him meeting with the Prime Minister to talk about the very important issues that are bubbling and maybe threatening to boil over. One of the things I was very excited about was the acknowledgement of the simple fact that the comprehensive claims policy of 1986 is entirely inadequate. A promise was made by the Prime Minister to work with the national chief, the Assembly of First Nations, and first nations to rewrite that policy, to make it work, to fix the problems that are preventing us from achieving good-faith negotiations under the auspices of the BC Treaty Commission.

I was a founding member of the BC Treaty Commission. I often tell people the jobs I've had, and I realize I shouldn't do that. That's why I didn't this morning. I often sound like someone who cannot hold a job. I've been chief of my own community. I've had four terms, eight years. I've been a senior manager for my tribal council and for the Stó:lo Nation. I'm a founding member of the BC Treaty Commission. I'm a founding member of the B.C. First Nations Leadership Council. I'm a past member of the First Nations Summit political executive. I'm a founding member of the B.C. First Nations Fisheries Council. I'm currently the chair of the First Nations Health Council.

I know all about negotiations. We negotiated a major deal with this government and the Province of British Columbia. I know how to do the work. I know how to do due diligence. I know how to get a deal that works for Canada, that works for the Province of British Columbia, and that works for B.C. first nations. I know how to do it because I've done it. The people you put at the tables don't know how. It's become a federal program with bureaucrats who have no training in negotiations, no training in conflict resolution, and no training in terms of creating win-wins. They have none of that. This, I'm afraid, is headed for serious conflict.

There are people who will say the Stó:lo can't get along. The fact that we're here together tells you differently. The fact that Joe and I were both willing to participate in a meaningful and real mediation process puts a lie to that. It's true that we fight amongst ourselves, and I'll you why. We fight first with Indian agents—always have, always will. A very close second is the Department of Fisheries and Oceans and federal fishery officers. It's neck and neck; sometimes we fight with federal fishery officers more than we fight with Indian agents. When we're not fighting Indian agents and when we're not fighting fishery officers, we fight amongst ourselves to stay in shape for the fights with the feds.

I'm not opposed to Yale securing a treaty. I am opposed to a treaty that tramples on the rights of 10,000 Stó:lo. I'm opposed to a treaty that does not create certainty. I'm opposed to a treaty that does not achieve social justice. I'm opposed to a treaty that does not create economic opportunity.

Thank you.

[The Chair, Conservative, Chris Warkentin]

Thank you.

Ms. Teillet.

[Jean Teillet, Chief Negotiator, Legal Counsel, Stó:lo Nation]

Thank you, Mr. Chair.

Good morning, everyone.

Since Grand Chief Kelly and Grand Chief Hall have given their credentials, maybe I should, too.

I may look like your quintessential white lawyer, but I am actually a Riel. I am from Red River in Manitoba. I have been a negotiator on treaties for 20-some-odd years. I started out at the end of the Yukon agreements, I worked on the Tlicho Agreement, and I work now as the chief negotiator for the Stó:lo Xwexwilmexw Treaty. So I have a long history in treaty with all kinds of governments—Conservative and Liberal governments. I have many, many years of working with them.

My impression is that it isn't about partisan politics. Everybody is trying to get treaties resolved. I want to start with that tone, that I think everybody in this room wants to have treaties and wants to have them resolved. The problem is how we do that and if this particular treaty should go through.

What I want to say here is that you've heard from the grand chiefs very eloquently about the problem here. It's what usually is described as an overlap problem or a shared territory dispute. That's really what's going on here. I think in this situation, overlap is usually two different peoples. Shared territory is really what we're talking about here. This is the Stó:lo territory, one small group, being proposed by the treaty to give them what belongs to the larger group.

Grand Chief Joe Hall was struggling for an analogy. The way I think about it is that you and your husband or you and your wife own a house and you hold it in joint title. Then you divorce. Instead of it being split or being kept in joint title, the house is given to one person. The way the proposal is in this treaty, to fix it, is to give the other party access rights. So we say, “Okay, Mr. Rathgeber, I'm going to take your house away from you. I won't pay you for it, by the way. It's not expropriation; I'm just going to take it away from you. I will fix it by putting an access clause in this agreement. You can come and visit it when I tell you that you can come and visit it, if I feel like letting you come and visit sometimes. But after a while, I may decide that you can never come and see this again.” That is what is being proposed here. The land is being taken away and given to one, and they will own it in fee simple. They get to decide then whether the rest of Stó:lo can ever come. That's the proposal on the table in this bill.

What I want to say to you is that Canada has played a very important role in solving these overlap problems in the past. Let me give you some examples. Tlicho is up in the Northwest Territories, just north of Great Slave Lake. It borders on Nunavut, it borders on Sahtu territory, and at the bottom it borders on a people call the Akaitcho people. The Tlicho got overlap agreements with everybody else, and it was not a problem. Akaitcho are historic enemies, right? I mean historic enemies. I've walked into rooms where one of the Tlicho chiefs would say, “Akaitcho, that murderer!” I remember saying to somebody, “Is that today?” It turns out it was 150 years ago. That's how vehement the dispute was.

It was a hard thing, but Canada played a really important role in solving that. What you did I think was actually right. We negotiated the whole treaty, it was all done, except that overlap. Canada took a very principled position and you said to us, “Okay, we won't sign this treaty until you solve the overlap problem.” That put real pressure on us, representing the Tlicho, to go and solve the problem. We wouldn't get a treaty until this was solved, and we solved it because they wanted a treaty.

Everybody has to have skin on the table if you're going to negotiate an agreement. That's one way you solve it. I think that is a very good way.

Well, you had the opportunity to do that here many times, and you didn't do it. You sat back and waited in the weeds. Canada had muscle to use to solve this problem, and you didn't do it. So you've signed the agreement—we're too late for that—but you can still exercise your muscle.

You've done it in other ways in other agreements. That's just one example. In 1975, with the James Bay and Northern Quebec Agreement, there were islands in James Bay that were hotly in dispute, so you carved those islands out. You pulled them out of the agreement and you said, okay, we'll give you the agreement, the rest of the agreement; sign that agreement, but we're going to take this disputed area out of that agreement for now and we'll give you the whole agreement, and then we'll come back when you have solved that overlap problem and we'll figure out how to put it back in your treaty.

You did it. It was another way of solving the problem and it worked. You did solve the problem.

You had overlap problems in the Nunavik agreement that was signed in 2006. In James Bay you solved this problem as long ago as 1975. Canada resolved these overlap issues. In 1993, with the Nunavut agreement, you also had overlap problems and you solved them. In the Nunavik agreement in 2006, you solved them, and the Tlicho agreement in 2005.

I've just given you five examples of where you have solved these overlap problems. Why didn't you do it here? Why didn't you do it here?

We're here today because as far as I can see, Canada vacated the scene. But you don't have to sit there; you can still fix this. We suggest that there are some amendments, very small amendments, you could make to this agreement, which I would suggest would go into a subclause 7(1) of the bill. I'll read it to you. You probably have the bill in front of you.

There is no subclause 7(1) right now. I'm proposing you add a subclause 7(1).

Clause 7 says:

On the effective date of the Agreement, the Yale First Nation owns the estate in fee simple, as set out in Chapter 12 of the Agreement, in Yale First Nation land.

I'm saying that should be amended to say:

Subject to 7(1), on the effective date...Yale First Nation owns the estate in fee simple

I'm saying that you add a subclause 7(1), which would essentially be a carve-out of the five-mile fishery. I'm suggesting the language be:

7(1) Any or all of the lands described in Appendix B2 - Part 2, Maps 1, 2 and 3 or Appendix C, Map 2 of the Agreement shall form part of the estate in fee simple in Yale First Nation Land or be subject to Yale First Nation laws only after the Agreement is amended to give effect to a shared territory agreement with Stó:lo.

What I'm suggesting to you is that Yale can have their treaty. You've heard both grand chiefs say we're not against Yale's treaty. What I am suggesting to you is a win-win here. Yale can have their treaty and you can exercise your muscle to insist on a resolution of this five-mile fishery dispute by just carving that part out of the treaty. It is a minute part of the land they're getting. It is not the major part; it's really just one tiny little area up in the canyon. The bulk of their land—something like 97% of their land—would still transfer to them. All of their jurisdictions with respect to everything else would transfer to them. They would get their treaty, and then when this is resolved, however it's resolved.... It may be resolved by an overlap agreement that's amending the treaty and added in, as in the Nunavut agreement, or the James Bay and Northern Quebec Agreement, or the Nunavik agreement—those are all possibilities. It's a very simple way of doing this.

What I said earlier about having skin on the table.... I've been a negotiator for a long time, and I think a lot of people in this room have probably sat around some negotiation tables, too. Everybody does have to have some skin on the table or you don't get a deal. If somebody walks in and they have nothing to gain from sitting down at a negotiation table and everything to lose, then you have no possibility of resolving that. That's the situation we were in, in these processes, the consultation process and the mediation process. Yale came to the table with the deal signed and sealed in their back pocket, and with nobody telling them they had to negotiate. Chief Hope said to us—and we were in the room, all of us—“Over my dead body will one word of my treaty change and over my dead body will Stó:lo be mentioned in my treaty.”

I'm sure you're going to say, “Well we've gone through all the processes. We tried everything we could.” If that's the position he took—and it is—going into the treaty consultation process and the mediations, then there is no possibility, and there never was.... He didn't have anything to gain to come to this table because nobody put any pressure on him to resolve the issue. So there was no process that was meaningful, ever, for us to solve this problem.

I'm putting forward what we suggest is a solution. We would ask that this be given some very serious consideration, because it is a possibility for giving them what they want—their treaty—and giving you what you want—their treaty—but also giving us an opportunity still to solve this problem with respect to that small area.

I want you to know that we had a lot of disputes and issues about a whole bunch of other things in the treaty. We've given those up and said that we'll pass on those. But it is the most important area for Stó:lo. You couldn't pick an area that will cause you more problems in the future than that particular area.

We're asking you to seriously consider this amendment.

I've also suggested that it would need “Subject to 7(1)” in subclauses 4(1) and in 5(1), so that it would carry all the way through the Yale act that you're proposing—that it go through except for that carved out section.

I want to thank you for the opportunity to make some submissions to you.

[The Chair, Conservative, Chris Warkentin]

Thank you.

We'll have time for three questions, and we'll begin with Ms. Crowder.

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

Thank you, Mr. Chair.

Thank you, Grand Chief Kelly, Grand Chief Hall, and Ms. Teillet, for coming before us.

Just so you know, the briefing document provided by Aboriginal Affairs says:

Taking steps to address government consultation obligations does not diminish the desirability of having First Nations resolve overlap issues amongst themselves, and Canada and British Columbia have continued to encourage Yale First Nation's efforts to discuss and resolve any shared territory issues with neighbouring First Nations.

What comes out of the department is very different from perhaps what people believe. We've seen this in other agreements.

Tsawwassen was a really good example where there were issues around overlap. The Cowichan, Penelakut, and the Stz'uminus alliance pointed to overlap issues that were not resolved before the treaty. We raised concerns around that, and essentially the government of the day indicated, “Well, it's up to the first nations to sort it out. We've done our bit.”

Ms. Teillet, you pointed out Tlicho. Tlicho is a really good example. We managed to pass that bill at all stages in the House because it was resolved before it got to the House.

It's a frustrating process because—Tsawwassen is a good example—once the agreement is signed, essentially the government washes its hands. This isn't a partisan remark. This isn't about whether it's Conservatives or Liberals who are negotiating treaties. It doesn't matter. It's the stance. It's the policy that it's up to first nations to sort it out, even though often the territorial disputes are as a result of policies imposed by governments in the past that did separate nations, that did separate families, that did divide territories.

I have two questions.

The clause 7 amendment, in your view, would take the shared territory off the table. What process would need to be in place in order to move forward to get some sort of an agreement on that?

Chief Kelly.

[Chief Doug Kelly]

We're engaged now as Stó:lo leaders in talking about what we need to do together to organize ourselves to look at how we manage lands, resources, and opportunities. Our leadership is keen to avoid what's taking place today, where one part of our family is creating a potentially violent altercation on the river and on the banks of the river.

For us, we're already doing it. We're meeting among ourselves as tribes, as leaders. We're talking about how we are going to work together, how we resolve differences in a good way, how we make sure we support one another. When it comes to Yale, they are working with us through various fisheries management regimes.

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

Sorry, they are working...?

[Chief Doug Kelly]

They are working. They attend Lower Fraser Fishing Authority meetings along with our technicians and our leadership. So it is possible. There are some issues where there is common ground. But we don't have common ground because the federal chief negotiator is not interested in seeing any amendments, or because the provincial chief negotiator is not interested in seeing any amendments. So why would Yale? Yale already has the support of both levels of government to ram it through.

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

During this process, I can say with confidence that Stó:lo would have presented their case to the provincial and federal negotiators, would have provided the information around this history. Was there a response on why it wasn't accepted or considered, Chief Hall?

[Chief Joe Hall]

One of the puzzling things happened back in 2005. We provided boxes and boxes of evidence to Mr. Lofthouse and Mr. Barkwell at those sessions. They had all of the evidence. They promised and promised to respond. It wasn't until after B.C. actually passed their legislation that we received a formal letter of response on all of the issues we put in.

The process has been bizarre right from the start. We asked for evidence to support Yale's claim that they are not Stó:lo. We were told that this was not part of the B.C. treaty-making process. You just need to put a claim in, your statement of intent, etc.

It's important to note, too, that...I'm not sure which document you are referring to, but the BC Treaty Commission attempted twice to mediate with Yale. You have to know that all of our Stó:lo attempts to contact Yale during the development of their AIP went unheeded. There was no response to our attempts to get together to talk about it. It wasn't until the BC Treaty Commission actually brought in the chief of Yale that we met for the very first time, and he already had the initialled agreements in his hand.

That's something worth asking the BC Treaty Commission. At that session, who was not prepared to negotiate any kinds of changes? Not one comma was going to be altered in the agreement. They were there at that session. The Treaty Commission attempted twice, and then AANDC, the department of Indian affairs, put Vince Ready in and he attempted it. He came up with a solution. It was worth pursuing—the memorandum of respect and understanding, and the Stó:lo responded favourably to him. Unfortunately, the Yale First Nation decided they were not interested in pursuing it, and it collapsed the whole process for the third time.

I want to make it clear that we've attempted in every manner to try to resolve this, to sit at the table and resolve this. It isn't as though we sat and waited for the government to resolve it, because that's not the case at all.

[The Chair, Conservative, Chris Warkentin]

Thank you very much.

[Jean Teillet]

Could I just respond, Mr. Warkentin?

The point is that this overlap or shared territory dispute is not the same as Tsawwassen. It isn't the same. In that dispute, they were talking about a shared fishing territory that they were worried about. This is not the same. This land is going to be taken and given in fee simple to Yale. This is a taking of land. In law we would call that a nemo dat problem. For those of you who don't have the Latin, “nemo” means nothing and “dat” means to give. The federal government is giving to Yale what you don't have. You don't have it to give and you're giving it to them.

From what I'm suggesting in the amendment in 7(1), there is no process to fix it, but they would have to do it. If they want the rest of their treaty, they would have to sit down for the first time and honestly broker a deal, which they've never done.

[The Chair, Conservative, Chris Warkentin]

Thank you.

We'll turn now to Mr. Rickford for seven minutes.

[Greg Rickford, Conservative, Kenora, ON]

Thank you, Mr. Chair, and thank you, Jean, for the significant and substantive contributions to this process.

We don't mean to be rushing you, but normally we have a more limited presentation time, so that we have close to 50 minutes.... Right now we're trying to make sure that my colleague Carolyn gets some minutes. I'm going to jump in here to talk about some practical impacts of this agreement, in light of my colleague Jean's line of questioning.

During the course of the negotiations and the consultation process, both of your organizations have stated that STC and SXTA—I'll use the acronyms, since we're all familiar with them—have not had an opportunity to have input into the Yale First Nation final agreement. STC and SXTA have also stated that the Yale First Nation has refused to consider any changes to the final agreement post 2009.

My question is—and I have just a couple of minutes because I want to go to what I think is an important second question—haven't measures been taken to significantly reduce the practical impact of the Yale treaty on the STC and SXTA interests?

Joe, do you want to comment on that?

[Chief Joe Hall]

I'll try to be quick, and thank you for that. I recognize the time limitations, but put simply—and we encounter this in British Columbia as well—they feel what they've done is to improve access. They're missing the point about infringement and the taking of land, as my colleague Jean referred to. It's much more than simply an access issue here. It's quite a bit more: it's immemorial, as Grand Chief Doug spoke of. It isn't simply an access issue.

It seems as though the governments have convinced themselves that this is the problem, and they're missing the point of our presentation.

[The Vice-Chair, NDP, Jean Crowder]

I think Chief Kelly had a brief comment he wished to make, Mr. Rickford.

[Greg Rickford, Conservative, Kenora, ON]

Sure.