Indigenous and Northern Affairs Committee on Sept. 25th, 2017

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

Thank you.

Can I ask for the view of the summit?

[Cheryl Casimer]

Further to what my colleague, Chief Wilson, mentioned in terms of the leadership council, the executives of the First Nations Summit, the Union of British Columbia Indian Chiefs and the B.C. Assembly of First Nations make up what is called the leadership council. It is not a legal entity. It's just an initiative that brought everyone together, recognizing that it made more sense to work with each other in order to advance first nations issues collectively.

One of the main areas that we have full agreement on in terms of reconciliation is based on four principles that we developed as a collective of all chiefs in British Columbia. We've been using those to advance our issues around recognition and rights. You will find them in my presentation, on page 5, number 29, where it talks about the four principles.

First is acknowledgement that all our relationships are based on recognition and implementation of the existence of indigenous people, inherent title and rights pre-Confederation, and historic and modern treaties throughout B.C.

Second is acknowledgement that indigenous systems of governance and laws are essential to the regulation of land and resources throughout B.C.

Third is acknowledgement of the mutual responsibility that all of our government systems should shift to relationships, negotiations, and agreements based on recognition.

Finally, we must immediately move to consent-based decision-making and title-based fiscal relations, including revenue-sharing, in our relationship negotiations and agreements.

Those are the principles that move us forward in the work we do as the leadership council.

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

Thank you.

[Celeste Haldane]

I would say we all have the same goal when it comes to recognition and reconciliation. There are different pathways that indigenous nations are choosing to move their reconciliation forward based on self-determination and the inherent rights that indigenous peoples have to the lands and resources.

When it comes to the role of the treaty commission, we're an independent body and we're the only tripartite body in Canada to advance reconciliation. At the end of it, the goal is a modern treaty here in British Columbia to address the outstanding issues that we have since Confederation and even prior to Confederation. Our main roles are to facilitate, so our day-to-day work is to actually facilitate tripartite negotiations. Our body is also responsible for funding first nations that are in the treaty negotiations process, so we are the level playing field when it comes to indigenous nations negotiating through the modern treaty process in B.C.

Our other key mandate area is communications and public education. We utilize a variety of techniques, but at the end of the day the goal is to ensure that we have nations advancing reconciliation and recognition of their inherent rights as indigenous peoples through a modern treaty negotiations process. I hope that helps the discussion.

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

Thank you.

To go back, Chief Wilson, you talked about the splitting of the process. Can you elaborate on that piece a bit? Is the splitting an appropriate split between the comprehensive and specific, or...?

[Chief Judy Wilson]

In 1973 Canada made a unilateral decision to split comprehensive and specific claims into two separate processes, which created more new barriers to justice and restitution for indigenous nations. I believe that was just to slow down the process. After that, we had justice at last, in a review of the whole thing, but there are still barriers created with the conflict of interest.

It was still a failed way of.... If we have learned anything from it, it's that it wasn't appropriate.

Jody, do you want to speak to that?

[Jody Woods]

One of the direct problems was that it linked the resolution of specific claims to extinguishment. It meant that communities that were in any kind of comprehensive claims process had to sign off on their rights to have Canada's historical wrongdoings resolved and compensated for. That was one of the key barriers, and it was set up by that.

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

I see other people want to comment.

[The Chair, Liberal, MaryAnn Mihychuk]

We are out of time on this round, so we'll have to save that.

We are now moving questioning to MP Romeo Saganash.

[Romeo Saganash, NDP, Abitibi—Baie-James—Nunavik—Eeyou, QC]

Meegwetch, Madame Chair.

[Member speaks in Cree]

Those were words of thanks.

It's certainly a privilege to have you before this committee. A lot of experience stems from this province in treaty negotiations and jurisprudence that is important for this country.

I want to start, because we touched on it briefly, with the whole issue of extinguishment. I'm from northern Quebec, where we signed the first modern treaty back in 1975, and I've always had a hard time reading section 2.1 of the James Bay and Northern Quebec Agreement whereby the Cree and the Inuit surrendered, ceded, and conveyed all of their rights in and to land.

I'm not sure that this provision is constitutional; such is my view. Certainly the Human Rights Committee back in 1999 declared that the extinguishment clause that we find in the James Bay and Northern Quebec Agreement was contrary to the right to self-determination. That's as early as 1999. I understand the rationale behind such a provision, but I want to hear your thoughts. Are there any other models that you would suggest for achieving the certainty that governments usually ask for?

[Chief Judy Wilson]

In 1910, our ancestral chiefs developed something called the Sir Wilfrid Laurier memorial. It already laid out a blueprint for us. It was based on coexistence and on sharing....50% of the resources. The other thing was that it had a relationship role in it. Our ancestral chiefs were very wise to say your laws won't interfere with us, and our laws won't....

They were establishing that we had our inherent laws. That was in 1910, and there was a failure of government to recognize that on a nation-to-nation relationship basis. They want, though, to hem us in on the basis of extinguishment and ceding and surrendering our title. We are distinct nations. We have our own orders of government. We have our own lands. We have our own languages. All of those things went into our 1910 Sir Wilfrid Laurier memorial. Even back then, they had it all framed out.

[Melissa Louie, Legal and Policy Advisor, First Nations Summit]

Thank you for your question. It's very relevant and very timely.

Here in B.C., I think we need to be really clear that we negotiate through the made-in-B.C. treaty negotiations framework. It's not under Canada's comprehensive claims policy. There's a really important distinction there in terms of the certainty aspect, or extinguishment, as we've heard it referred to throughout this morning.

In B.C., the made-in-B.C. treaty negotiations framework is moving away from any notion of extinguishment. In the modern-day treaties, you'll see that it becomes a non-assertion legal certainty technique as distinct from an extinguishment technique, and it has been that way for a number of years. What we've seen lately is the federal government shifting to a rights recognition framework, and we've heard Minister Jody Wilson-Raybould on several occasions actually speaking to the fact that treaties are meant to be evolving; that there is not a final relationship. We're moving away from language like “final agreement” because it's not appropriate; we're moving to a framework of treaties and rights recognition.

In terms of what types of approaches could work, in B.C. we've been exploring the non-assertion technique, which needs to be paired with an orderly process and periodic reviews to get at the heart of the fact that these relationships need to evolve and that rights are not stagnant. The Constitution and section 35 don't set out that rights are final and that once you establish them, that's it, the end of the story. They're meant to evolve. They're meant to be living, and the rights recognition framework is bringing us to that point.

I'm not sure whether Cheryl or my colleagues have anything to add.

[Celeste Haldane]

I think you articulated it quite well. The treaty commission continues to support the movement away from extinguishment. It was never seen as the underpinning of this process at all.

I agree that relationships need to evolve and there needs to be that space. There's that space within the Constitution, in that there is the evergreen model or the living tree model, and we are continuously supporting the evolution here in British Columbia when it comes to the rights recognition model.

I think there's enough room to explore what works here for indigenous nations and what works also for the federal government, and it is to ensure that case law is reflected and upheld, that there is a process inherent within the treaty negotiations process that actually envelops the new jurisprudence created across the country, and that relationships also must have the ability to evolve. That's the process we support here in B.C. There is amazing work under way to continue to push that forward, so our role is to continue to support that dialogue.

[Romeo Saganash, NDP, Abitibi—Baie-James—Nunavik—Eeyou, QC]

Thank you.

I have one minute. There is one important question that I want to hear all three presenters on as well.

You quoted the Tsilhqot'in case. One of the interesting passages in Tsilhqot'in is where the Supreme Court says that section 35 rights and the Charter of Rights and Freedoms are “sister provisions”. In a way, I think we need to move to a human rights-based approach in terms of land claims in this country.

You all spoke about the UN Declaration on the Rights of Indigenous Peoples. Should that be one of the bases or the minimum standards that we find? Should that be the basis of a new approach in this country?

[The Chair, Liberal, MaryAnn Mihychuk]

We only have a few seconds.

[Chief Judy Wilson]

I think the biggest issue is fully implementing the United Nations Declaration on the Rights of Indigenous Peoples, not domesticating it under Canada's law and not reducing it to something else. It is a full international law that needs to be implemented totally.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you.

Questioning now will be for short periods of three minutes.

MP Gary Anandasangaree.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

Thank you, Madam Chair, and I too want to acknowledge the Tsawwassen people for allowing us to be here today.

I know that B.C. is unique with respect to the different jurisdictions in relation to comprehensive claims. I want to home in on a couple of questions.

You mentioned that there are 14 advanced negotiations taking place. I believe that five of them you mentioned are multi-nation frameworks. How does that process work? Also, what is required to have that level of co-operation among the different communities? Is it based on geography? Is it based on some shared tradition? What's the basis of that coming together?

[Celeste Haldane]

That's a great question. I think what that exemplifies is nationhood. When we're talking about and looking at nationhood in our country, that exemplifies it. These are nations that have entered into our process together to collectively negotiate. Some are negotiating at separate stages, but it really does represent a true nation that has entered into our process.

There's always room to have further discussions, because some that have entered our process are singular, but some are multi-nation, and yes, it takes a lot of political will amongst those nations to continue to negotiate. We continue to support them in a process.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

In your conclusion, you said that the ultimate goal would be to be free from the Indian Act. I think some of the issues that you mentioned were about hotels and tourism and so on. Is there a broader consideration on issues of education and control over health care and so on? Or is that already included in the treaty you've negotiated? If so, what lessons can we learn from that?

[Tom Happynook]

We are now able to focus our money on education. We're now able to also fund trades schooling, so that was a big one for us. We have youth who are now interested in getting a trade and so on or in going to school.

Health care we left with Canada. We had some thoughts about drawing down health jurisdictions, but we changed our mind. We figured that we could go bankrupt in a matter of months.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

Is that one of those sectoral areas that can have a broader...? For example, can you do the treaty and still do a multi-nation agreement on health? Is that allowed or is that...?

[Tom Happynook]

We purchase health services from the Nuu-chah-nulth Tribal Council. We still have that relationship. But it's in our hands. We get to decide whom we want to partner with to provide health care services.

[The Chair, Liberal, MaryAnn Mihychuk]

That concludes our formal panel number one today. We're going to take a short break for about 15 minutes, and we're going to be recommencing at 10:15.

Thank you very much for coming. I appreciate it.

I'm sure all of us had a good foundation on B.C. treaty negotiations.

Meegwetch.

[The Chair, Liberal, MaryAnn Mihychuk]

Welcome, everybody. First of all, I want to apologize for my pronunciation. It is going to be brutal.

Welcome to our standing committee hearings on land claims. I wish to introduce the Sto:lo Xwexwilmexw and the Te'mexw treaty associations. As we begin to explore land claims, the history of land claims, and the implications, we want to welcome you to the process.

B.C. is a special place. I come from the Prairies. I know a little about numbered treaties.

You come from a place where we've heard of successful negotiations of modern treaties. We look forward to your insights and the wisdom you can provide to us.

I open it up for you to begin. Each group will have 10 minutes to present, or if you've decided to split it some other way, that's fine, too. Then, we'll go into the rounds of questioning.

Welcome. I will turn it over to you.