Indigenous and Northern Affairs Committee on June 6th, 2013

[The Chair, Conservative, Chris Warkentin]

Colleagues, I'll call this meeting to order. This is the 78th meeting of the Standing Committee on Aboriginal Affairs and Northern Development. Today pursuant to order of reference of Thursday, June 6, 2013, we are referring to Bill C-62, An Act to give effect to the Yale First Nation Final Agreement and to make consequential amendments to other Acts.

Today, first up, we have the minister.

We want to thank you, Minister, for being here and for being willing to be our first witness this morning. We'll turn it over to you and then we'll have some questions for you, as we usually do.

[Bernard Valcourt, Conservative, Minister of Aboriginal Affairs and Northern Development]

Thank you, Mr. Chair. It's good to be on Algonquin land this early in the morning.

I wish to thank you for giving me this opportunity to appear before you and talk about Bill C-62, An Act to give effect to the Yale First Nation Final Agreement.

This bill is the final step in the ratification of the Yale First Nation Final Agreement. It crystallizes nearly 20 years of negotiations, consultations, compromises, accommodations and creative solutions. This agreement represents the aspirations of the Yale First Nation people for future generations. It contains the blueprint for self governance within, and protected by, the Constitution of Canada and will provide a future free of the constraints of the Indian Act.

The bill before the House contains a number of key elements, some of which I would like to highlight today.

Yale First Nation will receive a capital transfer of $10.7 million; $2.2 million to promote economic development; one-time funding of $1.4 million and annual funding of $1.25 million to implement the agreement. Yale First Nation will receive an addition of 1,749 hectares of provincial crown land to its existing 217 hectares of reserve lands. It will control these lands by using its law-making authorities set out in the final agreement.

Yale First Nation members will have the right to harvest fish in accordance with agreed-upon allocations set out in the final agreement for food, social and ceremonial purposes in a designated area of the Fraser River. The commercial fishery is set out in a harvest agreement, which does not form part of the final agreement. It provides for fishing licenses to be issued to the Yale First Nation by Fisheries and Oceans Canada.

Mr. Chair, some neighbouring first nations have raised concerns regarding this agreement. I will now outline the steps that have been taken to address those concerns.

Sixty-nine first nation bands and related organizations claim asserted territories that intersect with the Yale First Nation's asserted territory. In January 2008, Canada and B.C. jointly invited each one of them to review what was then the Yale First Nation agreement in principle and convey any concerns regarding potential impacts the agreement might have had on their claimed interest. The vast majority of these bands and organizations have not raised any specific concerns with the Yale First Nation final agreement.

For those who did raise concerns, consultation meetings were conducted. During the course of these consultations, several accommodations were made, including within the final agreement itself. A brief summary of those would be as follows. Concerns were raised by the chief of the Chehalis band regarding a harvest area that included the eastern shoreline of Harrison Lake. With the support of Chief Hope, the Yale First Nation harvest area was adjusted to exclude the shoreline.

Next, Spuzzum band members expressed concerns during their consultation meetings regarding the access to a provincial crown land area, Frozen Lakes, which was offered as part of the land package that would eventually become Yale First Nation land. Yale First Nation agreed to add treaty language identifying these lands as open to the public.

Finally, during consultation with the Stó:lo Xwexwilmexw Treaty Association and the Stó:lo Tribal Council, we heard that their claim to aboriginal rights to access fishing and cultural sites in areas that will form Yale First Nation lands could be negatively impacted by the Yale First Nation final agreement.

Further, they strongly advocated that they required unfettered access to those lands and suggested that we remove all Yale First Nation reserves north of the town of Yale from Yale First Nation lands.

Regarding the timing of consultations with Stó:lo, Canada and B.C. shared the draft final agreement with Stó:lo in April 2009 and with the remaining overlap groups in July 2009. Throughout the remainder of that year, Canada and B.C. negotiated additional treaty provisions regarding access to Yale treaty lands in an effort to balance Stó:lo concerns with Yale's interest in concluding a treaty.

After meeting with Stó:lo to explain the changes made, the revised final agreement was shared with all 69 first nation entities in January 2012. The final agreement was initialled in February 2012.

A number of accommodations have been made.

The final agreement was amended to include a unique access provision to allow “reasonable public access” to Yale First Nation lands. When concerns were raised by the Stó:lo that the grounds for reasonable access might be too subjective, the parties agreed to a further change. This included the addition in the final agreement of objective criteria by which to consider access requests.

To address a Stó:lo concern regarding the scope of access that would be considered, the parties agreed to include in the final agreement first nation traditional purposes as a basis for the exercise of reasonable access.

Finally, the Yale First Nation proposed a long-term binding agreement with the Stó:lo that details an inclusive process to identify individuals and sites where access would be agreed upon, thus allowing those individuals access and use of Yale First Nation lands without requiring them to request access. The proposed agreement also includes a dispute resolution provision. As I understand it, this offer is still available to the Stó:lo.

Finally, Mr. Chair, I would like to respond briefly to a bill amendment proposal made by the Stó:lo representative at this committee earlier this week. The proposal would place a new requirement on Yale and Stó:lo to conclude a common understanding regarding a very significant portion of Yale treaty settlement lands before those lands could form part of the treaty.

The Yale-Stó:lo disagreement has been ongoing for decades, and I have, Mr. Chair and members of the committee, no reason to conclude that it will be resolved shortly. In fact, as you all know, I'm sure, the independent mediator appointed to seek a resolution confirmed this.

The Stó:lo proposal would also cover an area where a number of current and long-standing Yale reserves are located. It is not at all clear how the proposal could address the uncertainty created by such lands, including: current Yale reserves having a conditional status; who would own and manage the lands; and how long it might take before any actual certainty in the area could be achieved.

Mr. Chair, this fundamental and substantive change to Bill C-62 would require the B.C. government and Yale to rewrite a five-year agreement, causing a delay of years.

The chief commissioner of the British Columbia Treaty Commission has identified how the B.C. treaty process is intended to work and that overlapping claims cannot result in a veto by one first nation over another first nation's effort to move ahead with a modern treaty, and improve the life of their members.

Yale has incurred loan debts over 20 years of good faith negotiations and should have the opportunity to benefit from its negotiated treaty. It is time, I suggest, to move forward, not backward, and to help create greater opportunities for the Yale First Nation and others who live and work in the surrounding area.

The Government of Canada, the Government of British Columbia, and the Yale First Nation remain willing to continue the consultation process, at least up to the effective date of the final agreement in 2015.

We are willing to receive any new information not previously considered and to continue to engage with the overlapping first nations to seek a neutrally satisfactory solution.

But Mr. Chair, this agreement is about reconciliation with the Yale First Nation. It will bring certainty to the Yale First Nation's rights and titles, and it will provide greater opportunities for the local economy, to the benefit of all Canadian citizens, First Nation or otherwise, who live in the area. It is the foundation for rebuilding a relationship and supports the realization of a better future for the Yale First Nation.

I ask that my colleagues join with me in support of this vital demonstration of our government's commitment, and the commitment of all Canadians, to completing the unfinished business of settling treaties in British Columbia.

Thank you, Mr. Chair.

[The Chair, Conservative, Chris Warkentin]

Thank you, Minister.

Minister, I forgot to introduce the officials that you have brought with you: Mr. Barkwell from the department, Mr. Hamilton from the Department of Justice, and Mr. Mitchell from the Department of Finance. Thanks so much for being here and joining us as well.

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.

Thank you, Minister, and thank you department officials for coming before us. As I indicated in my speech in the House last night, New Democrats will be supporting this bill, with reservations.

We heard a very eloquent testimony from Stó:lo. We have before us a treaty which has unresolved issues. As all of the briefing documents and the 1991 framework agreement, signed in British Columbia, indicate, the look is toward first nations resolving overlapping and shared territorial disputes with some assistance from the B.C. Treaty Commission, but as we can see, in this case that hasn't happened.

Although the minister is indicating it will provide certainty, I would indicate that it may provide certainty for Yale, but it will not provide certainty for communities in the area, because Stó:lo has clearly indicated that they are going to continue to push their case forward in a number of ways.

With regard to the issue around overlapping and shared territories, Minister, you referred to reasonable public access. You did talk briefly about a couple of elements around reasonable public access.

Could you elaborate on what reasonable access looks like, and why it says “public” and not “Stó:lo”? It doesn't specifically note Stó:lõ access. What will happen if access is denied? What does that dispute resolution look like if access is denied?

[Bernard Valcourt, Conservative, Madawaska—Restigouche, NB]

I'm going to try to briefly answer your query.

In terms of the efforts made by the parties to satisfy or settle the dispute—let's call it the conflicting claims to Yale First Nation land—my reading of it is that Yale has made all sorts of compromises to allow this access to the public, which includes Stó:lo members.

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

Was there a reason the Stó:lo weren't specifically named in that public access? I think that's a bit of a sticking point.

[Bernard Valcourt, Conservative, Madawaska—Restigouche, NB]

Well, the agreement was modified in order to ensure that the reasonable consent could not be unreasonably withheld. There are even criteria laid out in the agreement to determine what the criteria are that must be considered to grant access. That is in the agreement.

On your other question as to the general policy on overlap, of course first nations are encouraged in the first place to settle this among themselves, but you cannot let the whole B.C. treaty process become hostage to overlap claims that cannot be reconciled. What is important is that the general provision chapter in the Yale First Nation final agreement clearly sets out that, “Nothing in this Agreement affects, recognizes or provides any rights under section 35 of the Constitution Act, 1982 for any aboriginal people other than Yale...”. So they are protected.

In addition, it says that if ever a court determines that any aboriginal people have rights under section 35 that are adversely affected by a provision of the Yale First Nation final agreement, the provisions would only operate so as to not adversely affect those rights. If those provisions can also operate, the Yale First Nation final agreement would be amended to remedy or replace the provision.

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

I'm aware of the provision, Mr. Minister.

I think the challenge is that the Stó:lo clearly don't acknowledge that their rights are protected, and they have indicated that they're going to take further action. That's undetermined at this point, but the one part of my question you didn't answer was what are the elements of the dispute resolution mechanism if access is denied.

[Bernard Valcourt, Conservative, Madawaska—Restigouche, NB]

Perhaps I'll ask the official to give you the details.

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

That's fine.

[Jim Barkwell, Senior Director of Negotiations, South, Treaties and Aboriginal Government, Department of Indian Affairs and Northern Development]

Okay, I'll simply touch on a few of the points.

You asked what it looks like in the agreement. The provision is in paragraph 14.8.1 in the access chapter. It allows anyone to make a request for reasonable access to Yale First Nation land, and the Yale are only allowed to refuse it on reasonable grounds. If they accept the request, they can provide a permit, or they can otherwise allow an individual to have access to the lands.

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

I'm sorry, Mr. Barkwell, are “reasonable grounds” outlined in the agreement?

[Jim Barkwell]

Yes.

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

That's fine then. They're clearly outlined so there are clear criteria for what “reasonable access” would look like.

[Jim Barkwell]

We have objective criteria set out. It's a non-exhaustive list. “Reasonable grounds” include harvesting or extracting resources located on Yale First Nation land, unless authorized by Yale law; causing damage to land or resources; causing nuisance; or endangering the safety of any person on Yale First Nation land. Those are examples of the kind of reasonable grounds that might be used to deny access.

The definition of “reasonable access” is also set out in the agreement, and it says, “temporary site access for personal recreational and non-commercial purposes” as well as a part that was added very late in the treaty process, “access for first nation traditional purposes”. That particular clause was added in response to comments made by the Stó:lo treaty association who were concerned they weren't reflected in the definition that had existed previously. So we added at the end of the definition “on reasonable conditions specified by Yale First Nation law.”

In terms of dispute resolution, Yale First Nation law itself may set out how that would work and what opportunities an individual who was denied access may have to challenge the denial. An individual can also use court processes to challenge a denial of access.

[The Chair, Conservative, Chris Warkentin]

Thank you very much.

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

[Greg Rickford, Conservative, Kenora, ON]

Thank you, Minister, for being here today, and thanks also to the officials.

Minister, before I begin with my questions, I'd like to take this opportunity to acknowledge all members of the standing committee. It has been a very busy year. I would extend the opportunity for you to comment briefly on some of the hard work that's been done here at committee.

We had an opportunity on this matter to listen to representatives from Stó:lo, and I appreciated very much the B.C. Treaty Commission, which is operating in the middle of some palpable tensions concerning in particular a section of land. I took the opportunity to ask some rather technical questions about watermarks and rock points, matters that get down to those tensions in so many ways. In your presentation, you have outlined the potential and the hope for some of these matters to be resolved and the mechanisms by which they will be resolved.

However, I need to clarify the record on the basis of their testimonies just two days ago, and I want to revisit quickly a couple of points, if you'll indulge me.

First of all, the Stó:lo representatives referred to the Yale First Nation as Stó:lo. In your view or that of departmental officials, is this accurate? What is the significance of this affiliation for the purposes of the B.C. Treaty Commission process? I think it bears out in other work the B.C. Treaty Commission might do.

[Bernard Valcourt, Conservative, Madawaska—Restigouche, NB]

The B.C. treaty process permits first nations to self-identify for negotiation of a treaty and provides for interest-based negotiations. This arose from specific recommendations of the British Columbia Claims Task Force comprised of the First Nations Summit, Canada, and B.C.

The Yale Indian band is a separate band under the Indian Act. The Yale band, also known as the Yale First Nation, has self-identified as a separate entity from the Stó:lo and entered the B.C. process on this basis. So Canada respects the decision of the Yale First Nation to self-identify.

[Greg Rickford, Conservative, Kenora, ON]

The Stó:lo representatives stated that Yale First Nation, in their view, had collapsed—I guess would be the best word—the remediation process intended to find a resolution to the differences as they exist between Yale and Stó:lo.

In your view, in the department's view, is this accurate?

[Bernard Valcourt, Conservative, Madawaska—Restigouche, NB]

The mediation process, as you may all know, is a without prejudice process, and so we are not permitted to comment on specifics.

Following the mediation's conclusion, the Yale First Nation—this is important to signal—has written twice to reiterate its desire to attain an agreement with Stó:lo groups. In its latest offer, dated January 31, 2013, the Yale First Nation proposed a 10-year binding agreement with Stó:lo groups to provide preferred access to Yale First Nation land. The proposed agreement contains provisions for a joint Yale First Nation and Stó:lo working group for renewal terms and for dispute resolution.

Yale First Nation additionally offered to draft Yale First Nation land law to address additional specific Stó:lo concerns over land disposition. In its offer, Yale First Nation wrote to extend an offer for discussions with Stó:lo groups with the aim of finding a peaceful and collaborative, if I may quote, “solution for the parties”. As I said earlier, this offer remains open.

[Greg Rickford, Conservative, Kenora, ON]

That would give rise to the hope you spoke of in your speech, that there is a mechanism for and an ability of those groups to move forward without some of the difficulties that may have been suggested implicitly or even explicitly.

Following from that, the Stó:lo representatives spoke of having aboriginal rights and title confirmed by a court. In your view, is this the case?

[Bernard Valcourt, Conservative, Madawaska—Restigouche, NB]

The area Stó:lo claimed was traditional territories of approximately 1.33-million hectares. Within this claimed area Stó:lo groups have asserted aboriginal right and shared territory to the lower Fraser Canyon area. Stó:lo groups have outstanding civil claims in the B.C. Supreme Court respecting their aboriginal rights and title to their claimed traditional territory; however, no such civil claim has yet been proven in court.

[Greg Rickford, Conservative, Kenora, ON]

Okay. Finally, Mr. Chair, if I have but a minute or two, these lands that were allocated to Yale under the agreement were referred to as “Stó:lo”. Could you comment on that in the context of this process and how that is moving forward?

[Bernard Valcourt, Conservative, Madawaska—Restigouche, NB]

As I just said, the area of Stó:lo claims traditional territories of approximately 1.33-million hectares, and Yale First Nation land of 1,966 hectares is located within this large geographic claimed area. Within the lower Fraser Canyon area there are also parcels of land designated to become Yale First Nation land, including Indian reserves that have been held by Yale First Nation for over a century. The largest reserve in the lower Fraser Canyon is held for the benefit of a Stó:lo group band. Stó:lo groups have asserted aboriginal rights and shared territory to the lower Fraser Canyon area, including parcels of Yale First Nation land within this area. This area is referred to by the Stó:lo as the five-mile fishery.

[The Chair, Conservative, Chris Warkentin]

Thank you.

Ms. Bennett, we'll turn now to you for the next seven minutes.