Indigenous and Northern Affairs Committee on June 6th, 2013

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

Thanks very much.

First, I would ask, Mr. Chair, whether there was a determination if the Stó:lo amendment was in order.

[The Chair, Conservative, Chris Warkentin]

Let me double-check; I believe I know the answer.

I can confirm that it was deemed to be out of order.

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

Thank you for being here, Minister.

As you know, we have some concerns, and I think that even in your opening remarks, where you said that the final agreement was amended to include a unique access provision to allow reasonable public access to Yale First Nation lands, like my colleague, I don't think that quite addresses what we heard here at committee on Tuesday. There are serious concerns with respect to how this bill meets the processes laid out at this time in Canada. There are serious concerns that the Department of Justice's narrow view as a strength of claim analysis, which many have called the first-past-the-post system, doesn't really deal with the overlapping shared territory issue. A sort of gentleman's agreement in terms of access or having to have permission to access is still, I think, viewed as not dealing with the issue in quite the same way as we saw with Eeyou, where there was actually shared territory out there on the map.

I mainly want to know how we go forward on this. The B.C. commissioner has sent you a letter with four recommendations, the first of which is how you assure the section 35 rights. I just want to know how you think you're going forward. There's a Senate committee report which says that the federal decision-making processes and negotiation mandates need to be revised to accord federal negotiators sufficient flexibility and authority to engage in open, genuine, and interest-based negotiations, and that the B.C. Treaty Commission should be provided with the resources to make sure they can appoint dispute resolution services or assist first nations in the resolution of overlapping claims within the B.C. treaty process.

I think the process as it is right now...even the chief commissioner was clear that the red light, green light that happens in terms of what's possible in the multiple approvals doesn't really give them the ability to do their job.

In its imperfection, this bill will go forward, but where are we going to go from here? What have we learned from this process such that this doesn't ever happen again, where something comes to Parliament without these overlapping rights being satisfactorily dealt with?

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

You raise a very significant concern. Aboriginal groups, provinces, and the private sector have long called for a more efficient and effective treaty and self-government negotiation process.

The current process, as you imply, allows negotiation to carry on for years with no guarantee of an agreement being reached, creating financial liabilities for aboriginal communities while impeding economic growth and investment. That is why in the little over three months since I inherited this exciting challenge of being Minister of Aboriginal Affairs, I have spent a considerable amount of my time trying to meet with stakeholders and the B.C. Treaty Commission, because it is critically important, elsewhere in Canada, but particularly in B.C. because of its particular situation. We are working on identifying how we can implement in an effective way what former minister Duncan announced in September, which is trying to get a process that will yield better and quicker results.

Many factors must be combined and synchronized into a new approach. That's why on my last visit to Vancouver, I committed to a review and a renewal of the comprehensive land claim policy that hopefully will look at those four points you raised, which Commissioner Pierre mentioned. In addition, I'm hopeful that by the end of the summer the oversight committee that was created as a result of the January 11 meeting with the Prime Minister will come up with advice for the government on how we can implement a more effective and efficient comprehensive land claim policy. We're going to keep working on this and rely on the experience as you've referred to that we've had since—

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

Are you in favour of the idea of a reconciliation table where first nations would have the ability to sort these things out themselves? Obviously this is going to end up in court. Wouldn't it be better to give the B.C. Treaty Commission the resources to do the job properly such that you don't end up spending all this money in court?

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

I will frankly admit to you that when I look at this example, the Stó:lo and Yale first nations and the efforts that have been deployed as much at the level of the B.C. Treaty Commission as with officials and negotiators, at some point I don't know how you can reconcile these claims, but what you must not do is hold reconciliation hostage to people not wanting to agree. What is important is that at the end of the process those asserted rights not be jeopardized, and I think they are fully protected, as is shown in this agreement.

We cannot let the B.C. process or any other process in the country be held hostage to overlapping claims. The first nations themselves are going to have to work them out in the first place. How can we help? I'm ready to look at options, and if you have suggestions as to how you think we should consider options to help them solve these overlapping issues, of course I'm willing to consider them.

[The Chair, Conservative, Chris Warkentin]

Minister, we thank you for your time this morning. We certainly appreciate your willingness to come. This rounds off the time we've allocated for you.

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

Thank you, Mr. Chairman.

[The Chair, Conservative, Chris Warkentin]

Colleagues, we'll suspend and we'll be ready to hear from Yale First Nation next.

[The Chair, Conservative, Chris Warkentin]

Colleagues, I'll call the meeting back to order.

For the next hour we have with us Chief Hope. Thank you so much for being with us this morning. We certainly appreciate your attending. Obviously, this is an exciting day for your first nation and it's a privilege for us to have you here this morning.

Mr. Reiter, thanks so much for joining us as well.

Chief Hope, we'll turn it over to you now for you to give an opening statement, and then we'll no doubt have some questions for you. Again, welcome and thanks so much for being here.

[Chief Norman Hope, Chief, Chief Negotiator, Yale First Nation]

Thank you, Mr. Chairman.

Minister, members of Parliament, support staff, and other parliamentarians, thank you for this opportunity to speak to you at committee. I'd like to thank you all for taking the time to study Bill C-62, the Yale First Nation treaty bill. It's been 17 years in the making, a long and expensive negotiation with Canada and British Columbia through the B.C. Treaty Commission process.

We have dealt with many difficult issues over the negotiation, but with good faith and honest negotiations. At no time did any one party attempt to make a slick deal of any sort. There was respect for negotiators around the table.

At one time we called our treaty a fish treaty because we depend so much on the fishery resource. We always have. It's a big part of our life. But we found that we can't rely totally on the fish anymore. Times are changing. We worked on this treaty with the young people in mind. Therefore, I call it “the treaty for the youth”. They are the ones who will have to implement this over the next number of years, should it be approved, and they will have to live with it. We have many very capable young people growing up, coming to work in our office and other places in the community. They're very capable. I'm confident that when the time comes to implement this treaty and carry on from there, they will be able to do it.

Treaties are about land, power, and money. Certainly the land is the key issue here. We have to have water with land. We hope to harness some of that water for hydro power in the future. Other resources on the land are the timber resource, gold and other precious metals, gravel, and of course wildlife, and fish in the Fraser River. These are very important to us and the future of our people.

As for the power part of this treaty, we are working towards building our self-government. We have a constitution that has been ratified by the people of Yale First Nation. The young people I talked about will have an opportunity to build this government from the ground up. They'll have a constitution that they actually took part in to follow on all the issues that we had to deal with.

The Yale First Nation government will not have a lot of duties, but they are important to us. The government will govern our land. They will govern the fishery resource, along with the Department of Fisheries and Oceans. We will decide who can fish and where they can fish within the Yale area. I'm talking about the Yale people, nobody else. We can't suggest for a minute that we will tell anybody where they can fish, only the Yale people.

Of course we'll work with the federal government, DFO, the fisheries. The government will create a membership act on who the Yale people will be, or are. The Indian Act will disappear. I will certainly be relieved. After 34 years of being chief I found that doing business through the Department of Indian Affairs is quite slow and restricted. Self-government is great. I think it's good for us. We'll finally be able to look after ourselves.

As for the money, there's not a lot of money involved in this treaty. As I said, it's been a long, expensive negotiation and we do have a large loan to repay, but I'm looking forward to the economic development part of the settlement.

We would really like to provide some jobs in the outlying area, not only for the Yale First Nation people, but for our neighbours, the non-first nation people. We look forward to joint venturing with the businesses in the communities in the outlying area. Certainly, the implementation dollars will help us get set up to work with our new responsibilities. The fiscal finance agreement will be outside the treaty.

I would like to say a few things about our neighbours in the towns of Yale and Hope, and the outlying area, the Fraser Valley Regional District. We've met many times with these groups, and they have supported the Yale treaty since day one. We have a very close relationship with the regional district, area B, and the mayor of Hope, and the small community of Yale. We work closely with them. We grew up with them, and we expect good things in the future working side by side with them.

As for the first nation neighbours, we've spent a fair amount of time dealing with them. To the north of us are the Spuzzum and Nlaka'pamux nations. We have a very close relationship with them. They're very much like us. The formation of the land is very similar. They're in the Fraser Canyon. We'll continue to get along with them. We've always had an understanding of a boundary between Yale and Spuzzum, which we call Five Mile Creek. That's always been understood. We saw no need to put it in writing, and we haven't, at least to this date. It's clearly understood that there's a boundary between Yale First Nation and the Spuzzum Indian band. They are not in the treaty process.

To the west of us, up towards Harrison Lake, we have the In-SHUCK-ch people, our neighbours. We have trails up and over the hills that come out at Harrison Lake. We've met with the In-SHUCK-ch people many times, and we've determined that we do not have overlap concerns with any of the many Indian bands of the In-SHUCK-ch.

We've also met with the Chehalis, who are up in that same direction. The Chehalis are a separate nation. They're not Stó:lo people. They're a unique group of people. We've met with them and we have agreed that yes, we do have some shared territory, but they have said they do not want to hold up the process while we make up some sort of an agreement. We will at some point make an agreement in writing on how we will share the territory between Yale and Chehalis. As the crow flies, it's not really that far.

At the moment, with the Chehalis group, we have a handshake type of agreement. We've agreed that the Chehalis people may come up and camp on our land and fish in the Fraser River. In return, they have agreed that the Yale people can go over towards Chehalis and hunt and gather plants and pick blueberries. That is a really good historical agreement, at this point a handshake, but we will put it in writing. This is the type of arrangement we would like to do with all our neighbours.

We have the Spuzzum to the north. We have the In-SHUCK-ch and the Chehalis to the west. To the south of us are the Stó:lo people.

The closest Stó:lo Indian band would be the Union Bar Indian band. It is a very small community. They have a river frontage like we do. They have found that they're having the same problems that the Yale are having. Many neighbours are encroaching on their land and fishing in the Fraser River. They have some really good fishing places. They have some good land to camp on. They have streams to get water from. It's a nice territory, but they have the same problems we have.

I have not been able to talk to Chief Andy Alex of the Union Bar Indian band at length about this issue, although he said he'll talk, and these are his words, “at the appropriate time”. That has yet to happen, but I look forward to the day.

As for the other Stó:lo Indian bands, over the last 17 years we've attempted to meet with them. In many cases we were successful in getting a meeting, but they would not deal with the issue at hand. They wanted to negotiate with me and the Yale First Nation for our territory. Well, our territory wasn't on the table. What I was agreeable to do was to work out some sort of an arrangement for the Stó:lo people to come up and camp on our land and fish in the Fraser River. That's what I'd like to have discussed, but they would not deal with that. They wanted to negotiate some of the Yale land away from us. That certainly was not on the table.

We went through that for many years. As we concluded the negotiation of the treaty, the federal government arranged for a mediator, Vince Ready. He's a very well-known mediator. We agreed to this. For a year we attended mediation sessions to make an arrangement so that the Stó:lo people could come on our land, camp and fish, and enjoy the territory, but they had other ideas. They wanted to add on to the Yale treaty some provisions for the Stó:lo to come on our land. That was not on the table either. We would never.... It's impossible. It doesn't make sense. They wanted to add some Stó:lo clauses in the Yale treaty. That wasn't agreeable to Yale.

We found that the mediation was going nowhere. We were not agreeing on anything that would help us get along in the future. Myself, I came to the conclusion that I should be talking to the grassroots people. They're the ones on the ground. They're the ones who would be camping on our land and fishing in the river, not the grand chiefs. I don't believe the grand chiefs could have done an agreement with Yale. How could they bind 10,000 people to an agreement? I think it would be difficult. Anyway, it didn't go anywhere. The mediations stopped.

We hope to get on with concluding this treaty.

I am looking forward to questions regarding the Stó:lo in the next part.

I would like our negotiator Rob Reiter to say a couple of words about the treaty.

[Robert Reiter, Negotiator, Yale First Nation]

Thank you, Chief.

Ladies and gentlemen, I am legal counsel for Yale First Nation. I'm also legal counsel at several closing tables across the country on comprehensive claims.

The issues you see before you today aren't specific to Yale. In B.C., about 150% of the province is overlapped with competing claims by first nations. This is not something isolated to this treaty. What's unique about this treaty is the lobbying that was done by the Stó:lo.

I want to make it very clear that this treaty has been an exercise in compromise. We have, with respect to our neighbours, contracted our ambitions with respect to land to avoid overlaps. We have retracted our statement of claim over traditional area with respect to the Harrison so that we would not overlap with Chehalis or the In-SHUCK-ch people. We will only receive 1,966 hectares of an area that was claimed as 104,000 hectares. Of those 1,966 hectares, 266 are existing reserves. We have intentionally avoided selecting lands that abut the reserves of our direct neighbours—Union Bar, Spuzzum, etc.—to avoid that overlap.

We have intentionally put in a clause, which is not found in any other treaty in Canada, that provides for reasonable access to any aboriginal group, because there are others that we overlap. That reasonable access turns on coming to do your traditional harvesting, leaving the land as it was, and respecting whatever occupants are there keeping law and order. This isn't the case right now under the Indian Act system. There's a lot of lands being abused. There's a lot of garbage. I'm told there are illegal activities. That can't go on for the health not only of the Yale, but also for the non-natives living in the valley.

This treaty is a mechanism of law to address that. It provides a small amount of land. It provides access to the general public. There are huge chunks of land up in the mountain that are open entirely to the public for recreational purposes. The only lands we would like title to are those lands that are the reserve lands. They were set up historically as reserves for us over 100 years ago through an Indian commission, exclusively for Yale. There are about 16 reserves. You really have to ask yourself why an Indian reserve commission would set up a reserve for a group of Indians. Clearly, they were the only Indians there.

There's been a lot of disruption in the Yale area. Yale was the colonial capital. The terms of union were signed there. There was a drastic influx of non-native people, and a lot of the native people who were indigenous there died as a result of exposure to smallpox, influenza, etc. The bottom line, though, is that the one main staying factor is that the Yale people are there. They're on those reserves. They weren't granted to any other Indians. Their direct neighbours, Union Bar, miles away from them, aren't claiming any of those lands. The people who are claiming them are in some cases 100 kilometres away.

You would have to ask yourself why people who are geographically that removed would be claiming lands up the Fraser River when they weren't there; otherwise, they would have been granted reserves. Their neighbours aren't claiming it. It boils down to that there aren't any reserve lands or further lands outside of the reserve system in Chilliwack or Mission. Hope is where there is a very sparse population. It's the only free lands, other than going up into the Harrison. There's great fishing there. Historically, when Simon Fraser came through in 1803, he saw two huge Indian villages, strongly guarded, which governed the fishing and salmon trade.

We, in this treaty, at the insistence of the DOJ and the AG of B.C., have put in a clause for reasonable access. We put it in the treaty; no other treaty has it. We tried to engage the Stó:lo for two years with a mediator. All they told us is that we are Stó:lo, which is not the case historically. Yale is not a Stó:lo. They are Nlaka’pamux; they're Thompson Indian people. They're not part of the Stó:lo, which are lower down the river system. You have a different language group, different culture. That land, prior to European occupation, was exclusively possessed by the Yale. The AG of B.C. and the DOJ have done risk analysis on their supposed claim. It is weak.

Notwithstanding that, we provided the provision for reasonable access if there are any interests and rights at all. That is not good enough for them. It has to be unlimited access, it has to be uncontrolled access, and that quite frankly undermines the whole rationale for doing the treaty.

[The Chair, Conservative, Chris Warkentin]

Thank you, Mr. Reiter.

I think we'll turn to questions now and try to ensure we get a few questions in at least. We'll begin with Ms. Crowder.

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

Thank you, Mr. Chair.

I want to thank Chief Hope and Mr. Reiter for coming today. I'm from British Columbia as well and I understand the challenges the treaty process presents in British Columbia. Part of it is to do with the overlapping claims and the shared territories. I live on the traditional territories of the Cowichan peoples and when Tsawwassen was signed, there were some issues around overlap and shared territories.

Chief Hope, because your nation has been in negotiations for 20 years—that's a long time—I wonder if you could make some recommendations for the committee about how the treaty process could be improved in British Columbia. That's probably not a question that you came.... I hear you say things like the department has been difficult to deal with. That's nothing to do with the staff in the department; it's about the process. If you could make it easier for another nation to negotiate a treaty, what would that look like?

[Chief Norman Hope]

Oh boy. For me it would be very difficult to answer that, but Robert Reiter has an answer.

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

You said you moved to the grassroots to look for some resolution. My understanding is you have signed at least five agreements with families around access. Could you say a little bit about that?

[Chief Norman Hope]

Yes, that's in the handouts I provided. We have a real minor agreement that is not binding. It's based on friendship and respect. The people from several Stó:lo communities have approached me about fishing in the Fraser Canyon on Yale land. We've signed off on a real minor agreement, a memorandum of understanding. Elder Rita Pete from Chawathil, which is near Hope...that family has fished in the same place for many years. I told the elder I'd like to see her extended family fish in that very same place for many generations into the future, as with other extended families they have met with, five in total. It's a good arrangement. They are comfortable with it, and we are as well. They keep a good clean camp.

I know there's concern about the violence and theft in the canyon and other issues, so we hope this treaty will have a positive effect on their time when they're fishing in the Yale area. In the package there are examples of the actual five agreements, but I will remind you that they're really informal and not binding.

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

Chief Hope, I think the challenge is the committee doesn't have the packages. Is that correct? We need things in both official languages so we don't actually have the document in front of us.

If I may ask you a question about the implementation, my understanding is the implementation plan does not form part of the final agreement, and that it has a term of 10 years which can be extended by both parties. Are you comfortable with that implementation plan? Other nations have had challenges with their implementation.

[Chief Norman Hope]

It's going to be a challenge, sure, but we're looking forward to that.

Take the fishery, for example. Back home we're really involved in the fishery, and we believe we could implement the fishery part with no problem, as with the finance. The young fellow in the office is very capable and we're working with a large firm to help him along as needed.

In all the areas now.... We have to create a land act. We have a constitution that we can amend if we need to. I feel pretty comfortable with being able to implement this treaty over a period of time, and in 10 years would probably be possible.

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

When the minister was before us I asked him about the dispute resolution. My understanding is that it will be within the powers of Yale to develop a dispute resolution process. I think where it falls is under the certainty of principles.

Is that correct, Mr. Reiter or Chief Hope?

[Chief Norman Hope]

Yes, we look forward to the opportunity of building a dispute resolution with the Stó:lo when we set up this proposed working group.

Do you have a comment on the dispute resolution, Mr. Reiter?

[Robert Reiter]

The dispute resolution is modelled in the treaty already. What we would do is map it onto a dispute that would arise with any overlapping first nations. That dispute resolution model is based on the B.C. commercial arbitration legislation, and it's been well used in that jurisdiction and has morphed...or been used in other jurisdictions. It's a staged approach where there is information given, mediation and arbitration, and in some cases, depending on the subject matter, it could even lead to binding arbitration. The whole point is to prevent going to court.

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

Are you relying on a tried and true model of dispute resolution already?

[Robert Reiter]

It's one that's used in the context of first nations and further afield, yes.

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

I probably only have 30 seconds left.

Do you have any final comments about the treaty process itself?