Indigenous and Northern Affairs Committee on June 4th, 2013

[Chief Doug Kelly]

There's an unresolved tension between section 35 rights and the content of the Yale treaty. It's been boiled down to access, but it's not access. Right now those fishing sites belong to Stó:lo families. They're managed by Stó:lo families. They're not managed by federal fish officers. They're not managed by Indian agents. They're not managed by chiefs and councils of any communities. They're managed by families.

What you're proposing to do with the Yale treaty is put a gatekeeper in the name of the Yale chief and council, who now has the arbitrary power to decide who may or may not access their families' fishing grounds. That has provided a serious ground for significant violence and altercations in the future.

[Greg Rickford, Conservative, Kenora, ON]

Thank you, Grand Chief Kelly.

I should say, I appreciated your presentation very much. As a lawyer who's been involved in similar kinds of negotiations, it's inspiring when someone with your amount of experience, often probably much better than their own legal counsel's, comes to the table, particularly the standing committee, with this kind of information.

Jean, you clarified the proposed amendment very well, but I want to build on the technical part of this. I'll leave it in the last couple of minutes for you to break that question down. Most of the fishing sites being fished by Stó:lo members in the five-mile area, which is where most, if not all, of the preoccupation here is, are located below the high-water mark or are on rocks in the river itself. These are part of the public waterway governed by federal law and cannot be owned privately. The public waterway is not part of what would become Yale treaty lands. It is also the case that Yale has agreed to provide reasonable access, and you've dealt with the access issue it is focused on over Yale treaty lands.

Is the question, then: doesn't this significantly reduce the practical impact of the Yale treaty on both of the treaty associations' interests?

[Jean Teillet]

That argument is so fascinating to me because it completely misunderstands the nature of the Fraser River. The Fraser River is a wild river. It's coming through a bottleneck there. The idea that's proposed there is that you can access your fishing spot from the water. When the freshet is coming down at this time of year, which is the prime fishing time, it is virtually suicidal to go out on the water and try to access your rock.

It's also based on an idea that a rock is a rock is a rock. On one given year, that rock might be under water, so the people don't fish on that rock. They would fish on the rock up here, which would be above the high-water mark. It also negates the idea of the dry racks. The dry racks are not on the little rock down below the water; they're up on the land behind. This is the only place in B.C., in that five-mile area, where you can do this wind-dried fishing because of the unique area of the canyon. So this idea that somehow it's below the water mark, that you can access it that way, and that you can fish from that and that solves the problem—it doesn't solve the problem.

The other thing I want to really make clear is that more than 60% of the fishing sites we're talking about are not on reserves. They're on crown lands.

I want to make it really clear: it isn't an answer. In other words, it is not an answer because although we talk about them as “a” rock, it's actually an area. People often own two or three or four. A family could have two or three sites that they access. So it's absolutely not an answer.

[Greg Rickford, Conservative, Kenora, ON]

Okay.

Madam Chair—

[The Vice-Chair, NDP, Jean Crowder]

You have 20 seconds.

[Greg Rickford, Conservative, Kenora, ON]

Actually, I have one full minute, according to my stopwatch, but I'd be happy to give it—

[The Vice-Chair, NDP, Jean Crowder]

I'm sorry, but you don't.

Ms. Bennett, for the final question.

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

Thanks very much.

As you can understand, it's difficult for parliamentarians to understand their role when we're presented with something that was, to all effects, negotiated in good faith, was approved by the BC Treaty Commission, and is being sent here. I guess we want to have faith that what's happening at the high-level table between the Prime Minister and first nations leadership is going to fix some of these issues.

I understand that in terms of comprehensive claims, the Department of Justice, up till now, just looks at the strength of the individual claim in that analysis and hasn't really had the wherewithal to deal with the overlapping shared territory or—I think what you're describing—hasn't somehow exercised it, even if it maybe could have, should have, or ought to have. I guess what we're trying to determine, in terms of how you end up ensuring there is some reconciliation or the kinds of things you're talking about.... What we're hearing here this morning is very serious, in terms of a tinderbox, in terms of tensions that are worrying.

I'm pleased that you've brought these amendments forward, because I think you are describing to us the danger of exclusive access, and the idea that there has been, in many other previous negotiations, shared rights territory. Indeed, I think at the Eeyou it was actually on the map: it said “shared”. Even in the B.C legislature, they did talk about the present system being a sort of first past the post system: whoever gets there first gets what they asked for. Now we have to actually figure out that this process needs to change.

I would like my colleagues to understand whether you're comfortable that these rules are going to change as the negotiations go on, in terms of the Prime Minister and the leadership and how this negotiation process and the BC Treaty Commission process will change over this time. Therefore, without your amendments, this bill almost puts a problem in cement.

[Chief Doug Kelly]

I very much appreciate the comment and the question.

For me, there's a real opportunity with the work the Prime Minister and the national chief have set out to do with the redrafting, re-crafting, and renewing of the comprehensive claims policy. The very issues we're dealing with today deal with the failure of the current policy.

I was hopeful that because of the commitment by the Prime Minister we wouldn't be here at all now, that we would allow that process created by the Prime Minister and the national chief to complete its work, that any shortcomings in this Yale treaty would have to be measured against a new and improved comprehensive claims policy, and that those gaps would then be addressed by the parties.

But that's not what we're doing. In the zeal to get treaty number three, your chief negotiator has not done his homework. The BC Treaty Commission has taken on the role of cheerleader, instead of being a facilitator for the process. I've told them that to their face. They've been at summit meetings and I've told them that directly. They need to move away from being a cheerleader to providing leadership in the resolution of the problems.

The process that was approved and signed off on in 1992 contemplated all these issues. There were 19 recommendations made and approved by Canada, British Columbia, and first nations. This was anticipated years and years ago, but no one has done the work.

The treaty commission is supposed to be the keeper of the process, but it has not kept the process. So in addition to renewing the 1986 comprehensive claims policy, Canada, B.C., and the first nations summit need to make the treaty commission an independent, impartial keeper of the process, because right now it's not: it has pompoms and short skirts.

[Chief Joe Hall]

I'd like to add to my colleague's comments. The summit is later this week. I've come here and will race back home to attend the summit meeting. There's a resolution on the floor to discuss the need for an aboriginal body to deal with overlap and shared territory disputes, because it is running rampant.

I sit in on the chief negotiators' meetings in British Columbia as well, and they're all fearful of what's happened in the Stó:lo territory, and they already feel that this is possibly happening in their areas as well. The issue is mainly the fact that it was a voluntary process, to get together and try to resolve the dispute and overlap. As it turns out, it didn't work; it's not working.

So we're going to be discussing later this week at the summit perhaps establishing a body that will deal with these issues, and not leaving it to government to make the final decision. The government's response to us was that they're obligated to make a decision to move this process along. That was painful to hear. I said no, under the principles that Doug is referring to, we have that responsibility to do that. But what we're seeing now is that communities in this particular case, when they get the initialled agreement from the federal and provincial governments.... It's now not bilateral; it's now become I guess a multilateral approach, because what has happened is that Yale is saying, “If you want to change something, you have to come after us later, and you have to deal with the federal and provincial governments.” He actually said that at a BC Treaty Commission meeting.

That's what we're trying to prevent—to have these resolved before, and then notify government of the decision of a body in British Columbia that's going to deal with overlaps and dispute resolutions, using what I suggest is a blue chip aboriginal panel to deal with disputes and resolutions, so we can put forward all our evidence. Right now, Yale has not had to put any evidence on the table for us to look at and debate, while we've been doing all the submission of documents to the process.

[The Chair, Conservative, Chris Warkentin]

Thank you.

Folks, that completes our time. We want to thank you for coming. We appreciate the fact that it's three hours earlier in British Columbia, so this is early yet. We thank you for your testimony and your willingness to come this morning and make your opening statements, but also to answer our questions.

We'll now suspend, colleagues, for a few moments, and then we'll hear from the B.C. Treaty Commission.

Thank you.

[The Chair, Conservative, Chris Warkentin]

Colleagues, we'll call the meeting back to order. We are joined by representatives from the BC Treaty Commission.

We have Sophie Pierre, Dave Haggard, and Mark Smith. Thank you so much for joining us.

We'll continue in the customary practice of the committee. We'll hear your opening statement, Ms. Pierre, and I'm certain we'll have some questions for you.

[Sophie Pierre, Chief Commissioner, British Columbia Treaty Commission]

Good morning, everyone. Thank you very much for this invitation to appear before you today on this very important matter.

I'd like to just acknowledge my colleague Dave Haggard, the commissioner who's been appointed by British Columbia to the BC Treaty Commission, and Mark Smith, our director for process who provides advice and leadership to the various table negotiations.

I also want to acknowledge my friends and colleagues who have just presented, in particular Grand Chief Doug Kelly and Chief Joe Hall. I worked with those two gentlemen for many, many years.

Despite the picture that Grand Chief Kelly put in your mind about the commission and about the chief commissioner, I don't come here with a short skirt and pompoms. I do come here very much committed to the role we have, as the BC Treaty Commission, being the keeper of the process.

My presentation to you is in three parts. I first of all want to give you just an overall introduction to the BC Treaty Commission. I don't know how much information you have. I'll try to bring everybody to the same place.

I want to talk about the principles that created the made-in-B.C. treaty process. Then I want to talk about the actual policies we have as a commission, those policies that we follow in all of our negotiations.

Finally, I want to end by talking specifically about Yale, which you're gathered here to talk about. I think it's important that we set the foundation as to why we have the position we have in terms of the Yale treaty.

First and foremost, every first nation has the right to enter into a treaty with the Government of Canada. Our Constitution recognizes this, and directs that aboriginal rights may be acquired by way of modern land claims through subsection 35(3). This is the goal of the made-in-B.C. treaty process, to which Canada is one of three participating principals.

I, too, along with my former colleagues Grand Chief Doug Kelly and Chief Joe Hall, was there that day in 1992 when this was created. I am a signatory to those documents. So I've kind of come full circle.

The intent is for negotiations of fair and honourable treaties with first nations in British Columbia. That is also the work of the treaty commission. That's why we were formed, to oversee the made-in-B.C. treaty process, to be keepers of the process.

The B.C. treaty process is an extremely complex set of constitutional, legal, and political negotiations involving 60 various tables. That involves about 120 individual Indian bands, because many tables have more than one Indian band at them.

Each set of negotiations involves three separate parties, large transfers of land and cash, complex self-government provisions, fiscal matters, and the right to and management over resources such as fish, forestry, wildlife. Adding to all this complexity is the issue of overlapping and shared territory claims amongst and between first nations.

Although overlapping and shared issues have gained increased attention in the past few years, these issues are not new. They were contemplated as part of the process when it was started back in 1992, when Canada signed on to it, when we all signed on to it. The principles established to address these issues still hold firm today.

The principles of the made-in-B.C. treaty negotiation process were as a result of a tripartite agreement between the first nations summit on behalf of the various first nations that agreed to look for solutions through a treaty-making process, the Government of Canada, and British Columbia. The Government of Canada committed in September 1992 to this unique made-in-B.C. process.

I keep stressing that: this is a made-in-B.C. process. As such, treaty-making in British Columbia is distinct and different from other processes to reconcile aboriginal rights issues in other provinces and territories.

While the recommendation about what is going on nationally on the comprehensive claims policy will have some effect on this, it cannot take away from the intent of why we have a made-in-B.C. treaty process.

The report of the British Columbia claims task force report led to the establishment of this process. The task force report includes a number of primary and related principles that pertain to overlap resolution. Recommendation one is that the process be based on political negotiations.

The process is open to all first nations in British Columbia, and the organization of first nations for negotiations is a decision that is to be made by each first nation. This was the decision that was agreed to by the first nations themselves. Those are recommendations 6 and 7.

The primary responsibility for resolving overlaps or shared territory issues lies with the first nations. That's recommendation 8.

All the parties and the courts recognize that resolution of overlapping disputes is best accomplished by first nations themselves. This responsibility must remain with the first nations, and the Government of Canada and the treaty commission can and should support first nations in their resolution efforts. However, unresolved overlaps must not lead to government intervention, must not prohibit the conclusion of final agreements, nor provide a veto to neighbouring first nations. The concept of a veto is also not supported by the highest court of Canada.

In Haida Nation v. British Columbia (Minister of Forests), 2004, the Supreme Court discussed the concept of a veto in context of crown decisions that could impact first nations with unproven aboriginal claims, which is currently the situation with overlapping claims in the B.C. treaty process. Section 48 states that:

this process [of consultation and accommodation] does not give Aboriginal groups a veto over what can be done with land pending final proof of the claim. The Aboriginal “consent” spoken of in Delgamuukw is appropriate only in cases of established rights, and then by no means in every case. Rather, what is required is a process of balancing interests, of give and take.

Requiring that overlap issues be resolved before agreements can be concluded or requiring the consent of neighbouring first nations over another first nation's final treaty would give that neighbouring first nation a veto over the treaty, a situation that our courts have determined is untenable. The concept of a veto is a blunt tool that is contrary to legal principles, contrary to the founding principles of the treaty process, and contrary to the right of first nations to move forward with modern treaties.

The United Nations Declaration on the Rights of Indigenous Peoples, known as UNDRIP, and its provisions relating to “the free, prior and informed consent of the indigenous peoples concerned” has been referred to by some first nations to support the concept of a veto on lands subject to overlapping claims. UNDRIP contains numerous articles that support the principle of self-determination, a founding principle of the B.C. treaty process, as well as articles promoting state mechanisms such as the treaty process to protect and enhance first nations rights.

Article 45 of UNDRIP also states that:

Nothing in this Declaration may be construed as diminishing or extinguishing the rights indigenous peoples have now or may acquire in the future.

To permit first nations a veto on overlapping claims would do just that and would take away the right of first nations to enter into a modern treaty with the Government of Canada.

It's very difficult to have this discussion knowing that it's more than just a political or a philosophical kind of argument, and that what we're talking about is people being able to continue to share territory as they move forward. However, we have to continue to find ways in which we can work together to make that happen, and not just look to others to find those solutions. We have to find them ourselves, as first nations.

Now I want to talk about what we as a treaty commission have put into place, because as was suggested, this idea of resolving these overlapping claims has been on the table right from the beginning.

The treaty commission's authority, as set out in the task force report and the 1992 commission agreement, is to receive first nations' statements of intent, including maps outlining their traditional territories. The statements of intent establish the basis for negotiating a treaty with a first nation. The role of the BC Treaty Commission does not include making determinations on the boundaries of traditional territories. In submitting SOIs—statements of intent—first nations are only required under the B.C. treaty agreement to identify the general geographic area of their traditional territories. The made-in-B.C. treaty negotiations process was deliberately established as a political process, not requiring proof of claim or territory, in order to make it as accessible as possible to all first nations. The first nations were part of that decision, part of that creation, and that's what we have to live with now.

As set out in recommendation 8 of the task force report, the primary responsibility for resolving overlapping claims and shared territory disputes lies with the first nations. The B.C. treaty negotiations process states that overlaps should be resolved by the conclusion of an AIP, and the treaty commission's policies and procedures outline steps that a first nation must take in order to address any overlapping territorial issues with neighbouring first nations. Our policy focuses on establishing processes for resolving overlaps between first nations: reporting to the BCTC on the progress of these processes, and subsequently by BCTC to the parties, and whether best efforts have been made to resolve the disputes. As first nations move through the negotiation process, it is expected to implement its agreed process for resolving overlaps.

The treaty commission is available to provide advice and resources and assist the parties to obtain dispute resolution services where requested. The treaty commission itself has become very active in these past few years in facilitating overlapping and shared territorial disputes. It is currently active in facilitating overlap issues with several first nations that are close to their agreements.

Earlier engagement on overlapping and shared territory issues is encouraged by our commission, as well as the federal government negotiators. The treaty commission has recommended to the Government of Canada that earlier land and cash offers to first nations would go a long way to assisting first nations to engage in their overlap issues.

The BCTC policy focuses on best efforts, and supporting those efforts with active facilitation and resources. If those efforts have been made and overlap remains unresolved at the time that a treaty is being completed, the treaty must move forward. The overlap issues would be dealt with through the non-derogation language of the treaty, and other processes, such as court, if necessary. It's not anyone's choice, but sometimes it's necessary.

To be specific in terms of Yale, it is the position of the BC Treaty Commission that the Yale final agreement must move through the parliamentary process expeditiously. We're pleased to see that Canada is moving ahead with Yale despite the complexities of the overlapping and shared territory issues with their Stó:lo neighbours.

These issues are important, and for this reason the facilitative measures were undertaken by the treaty commission and mediator Vince Ready in an attempt to bring resolution to these issues. However, as has been described to you this morning, those efforts have not brought a successful resolution. The Yale treaty must now move forward. The first nations, both Yale and Stó:lo, have made best efforts to resolve these issues, and they are at an impasse. However, the overlapping claims cannot result in a veto by one first nation over another first nation's right to move forward with a modern treaty, to get out from under the Indian Act, and to improve the lives of their members.

The Yale First Nation final agreement needs to be introduced into Parliament this session. The other two parties have been waiting for the federal parliamentary process since it was passed by the Yale First Nation in March 2011 and the B.C. legislature on June 2, 2011. This is too long a wait, given the time and resources expended by all the parties to conclude negotiations and the fact that people had come to these negotiations with the intent that they were going to be in good faith.

Thank you very much.

[The Chair, Conservative, Chris Warkentin]

Thank you so much.

We'll begin our rounds of questioning with Ms. Crowder for the first seven minutes.

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

Thank you, Mr. Chair.

I want to thank the commissioners for coming.

I'm from British Columbia, so I'm well aware of some of the challenges in British Columbia with treaties, and I know that sometimes it's difficult to come to a resolution that works for all parties involved.

I mentioned the Tsawwssen agreement earlier. I live on the traditional territories of the Cowichan peoples, and I know Cowichan had some concerns with Tsawwssen.

With regard to the matter before us, I'm understanding you to say that in your view best efforts were taken by all parties in terms of trying to achieve a resolution.

[Sophie Pierre]

Yes.

That's what we've been encouraging, particularly in these last few years.

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

I did have a chance to look at the mediator's report, and he booked out at some point, saying that the issues were unresolvable by mediation.

Is that your understanding as well?

[Sophie Pierre]

That is our understanding.

My colleague may want to say more to that. Commissioner Haggard actually has the responsibility for the Yale table.

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

Commissioner Haggard.

[Dave Haggard, Commissioner, British Columbia Treaty Commission]

Thank you, Sophie.

I don't know that I can add a lot to it, but there's no doubt that Vince Ready, who is probably one of the most prominent mediators in British Columbia, booked out, saying that the two sides were too far apart in the resolution of the issue.

As you heard this morning, the issue is very clear. It's over the five-mile fisheries in the Fraser Canyon and the areas surrounding that. There was a lot of good work done, in my view, but we did not get there.

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

Does the BC Treaty Commission have any role in considering the claim from another nation that has overlap concerns? Would you have looked at Stó:lo's historical documents?

We heard today from Grand Chief Hall that there was not a response from the negotiators until after the agreement was signed.

Would you have a role in examining the validity of Stó:lo's claims to the territories?

[Sophie Pierre]

Again, as I mentioned, in the principles of the negotiation process we do not make a determination about a first nation's traditional territory. We receive their information, their statement of intent, as we did with Yale, and as we have done with the Stó:lo who are at the negotiating table, which Chief Joe Hall spoke about.

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

Go ahead.

[Dave Haggard]

Maybe I can just add to that. The treaty commission doesn't have the authority to draw lines on the map, nor should we. It's not our role in life, although we are involved at this point in time in working with nations throughout British Columbia in trying to find mediated settlements to those disputed territory issues.

Good heavens, I would be afraid to drive through Chilliwack if I ever started drawing lines on Joe's or Doug Kelly's territory. It just wouldn't happen, and we don't do that.

We have had success in getting the nations to sit down at a table and start to talk about how to resolve issues in a disputed area. There's no question that disputed areas are throughout British Columbia.

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

The issues around overlap are interesting.

I know, Commissioner Pierre, you pointed out the principles around the BC Treaty Commission, and the view is that it's up to the nations to resolve that.

Again, in the briefing document that I referenced earlier, which was provided to the committee in a briefing binder, they did indicate that although they say overlapping claims are the responsibility of first nations, they did go on to cite a number of Supreme Court decisions, including Haida, Taku, Mikisew, Cree, Rio Tinto, and so on, that the crown has an obligation to consult with and, where appropriate, accommodate the interests of first nations claiming aboriginal rights and title over areas subject to a treaty or final agreement.

I think we've seen that there are some real challenges with the current overlap and shared territory mechanism to deal with it. I think we heard Chief Kelly suggest that there should be an independent body that can work with the nations that have these overlapped and shared territories. Do you have a view on that?