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

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

Thank you, Madam Chair.

Thanks to all three of you for your insights on this important issue.

As I said earlier, I come from a territory where we signed the first modern treaty. I find the idea of a full and final agreement unrealistic, in a way. Maybe you're aware of this, but the James Bay and Northern Quebec Agreement has been modified over the years at least close to 20 times. There are some 20 complementary agreements to the James Bay and Northern Quebec Agreement. That relationship is evolving over time.

I also use the example of Quebec, where the Innu and the Atikamekw have been negotiating for 35 years now. One of the issues that have always bothered me is the fact that we all know that negotiations take time, but at the same time we're negotiating over our lands, territories, and resources, development continues on those lands, and Canadians benefit from the development of those resources that belong to somebody else.

To all three of you, how do we address that injustice?

[Jean Teillet]

Tanshi.

The idea of the full and final agreement I think is a non-starter these days.

The problem is that Canada is looking to be risk averse. You want a bulletproof vest around you so that no aboriginal people can come after you ever again. That was the whole idea of the treaties. That's what extinguishment was about. You were getting rid of the people. You were getting rid of their rights to the land. You wanted it so that they were gone, just gone out of your lives, except for what was in the four corners of that agreement.

With this whole idea of chasing what I call the unicorn of certainty—it is a unicorn, an idea—nobody's ever seen it. It doesn't exist, and the chasing of it is a waste of time. So just drop it and move on to the idea of relationships.

Aboriginal people need jurisdiction, their own jurisdiction. However, there are three things that underlie the changes that need to happen. Number one is that you have to have an acknowledgement that up until now, Canada has been built on the idea that you own all the lands and resources, that you get all the decision-making about the lands and resources—or it's split between you and the provinces—and you get all the benefits from them. Government gets all of that.

The idea that has to change and that the treaties should be changing, and not under the name of certainty or full and final, is that for aboriginal people, title means they have ownership of that land. Tsilhqot'in and Delgamuukw both said that has an inescapable economic component to it. They get ownership, co-ownership of the land, they get shared decision-making on the lands and resources and what happens to them, and then you should get shared benefits from them.

When I say benefits, I don't mean just 2% of the revenue resource, I mean equity deals here, where you are a co-owner in that. Then you get part of the decision-making about how your lands are resourced. That's what I think should be in the treaties, and that's what this whole country should be all about. That is what this new move forward should be.

So drop extinguishment, drop certainty, share jurisdiction, share decision-making, share the lands with the people. I think that's what will move us forward. If we go forward with that and a relationship based on that, whether you call that a treaty or not—UNDRIP calls it “treaties, agreements and other constructive arrangements”—that's what we should be looking at.

I think those are the answers to how we move forward.

[Robert Janes]

I agree with everything that Jean has said, but I would also add to it.

The Supreme Court of Canada, in Haida, has given us a framework, predating UNDRIP, to start addressing this. They've said that arrangements around the management of crown lands don't have to wait for treaties or court cases.

While it's been bogged down, and I've probably helped to bog it down in lots of legal niceties and such like that, in the context of treaty-making, even in British Columbia, there was open discussion at the beginning about interim measures to protect resources. Those interim measures, for example, in the case of the people I work with, could involve acquiring lands. They could involve actively making decisions not to dispose of crown lands.

In larger areas, for example, it could be “Look, one of the things we're going to commit to is that with the lands that you've identified as potential treaty lands, we're not going to let things develop without your consent or a reasonable effort to enter into an impact benefit agreement.”

These things are well-developed ideas now.

Partly what happens is that there's a real imbalance of power in many of these negotiations. If you're not a first nation that has a lot of money to fight the company, you're out of luck.

It would make a huge difference if the governments were getting behind the first nations that are in the process and saying that these areas are identified for treaty negotiations and we can't let them go out.

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

I have about a minute left.

David, you spoke about moving away from certainty provisions into rights recognition mode.

What kind of framework should we use from now on? The Truth and Reconciliation Commission calls to action 43 calls on the Government of Canada, provinces, territories and the municipalities to use the UN declaration as the framework for reconciliation. Is that the path that this committee should also follow?

[Dr. David Schaepe]

I think I see it as the highest standard of the relationship, so to me it makes sense to pursue UNDRIP as a standard for creating the relationships. It has rights recognition as a foundation. It has this recognition of indigenous peoples as involved in managing their own lands and in having that need for consent. It forces us down a line by using that as a structure to figure out how to implement those things, how to make it work, and how to make it happen.

It goes back to a lot of what Jean and Robert were saying, which is that aspects of shared decision-making are I think fundamentally tied to implementation and the use of that structure. It moves us fundamentally away from some of the prophecies in the legalities of Canada being the sole decision-maker. Move towards rights recognition, away from consultation, and there are huge efficiencies in working towards shared decision-making on, for one example, an UNDRIP foundation.

[The Chair, Liberal, MaryAnn Mihychuk]

The questioning now moves to MP Mike Bossio.

[Mike Bossio, Liberal, Hastings—Lennox and Addington, ON]

Thanks to all of you for your testimony here today. My mind is reeling with all kinds of different directions that I want to go in with this.

A lot of what you've talked about is the whole-of-government approach, a focused nation-to-nation relationship, and the fluid nature that has to come into play through that relationship. As my colleague MP Saganash said earlier, an extinguishment of rights doesn't even really jibe with our Constitution and the Charter of Rights and Freedoms, right? I think he's right that it probably wouldn't stand up in a court of law if it went to the Supreme Court, so I agree with you.

In looking at that, do you agree with splitting up INAC into the nation-to-nation whole-of-government approach of one minister and the services approach of another? Mr. Janes, you mentioned this. You agree that this is the right direction to go in, but only if the mandate letters of all of the ministers and all the other departments that have to interact or have to be a part of a negotiation are at the table....

The reason I completely agree with where you're coming from on this is that last year, as part of our environment committee, I had the benefit of visiting with the Salish nation and also with the Haida people. They had issues, with the biggest one being, once again, that there's just no land that is affordable to buy now amongst the islands that exist off Vancouver Island, and, with the Haida people, getting all of the different departments together to sit down and finally hammer out and negotiate an agreement. You might get Parks Canada and the Minister of Environment to the table, but then have a hard time getting Fisheries to the table to establish....

Do you agree, though, that if we can get a minister to break down those silos and take a whole-of-government approach, that is absolutely what is necessary to move this process forward?

[Jean Teillet]

I can take a first kick at that.

I think that in a way it has to be approached.... We have one sort of model in government already, which is the environmental idea that the environment should override, sit on top, and guide what everybody's thinking about. Protection of the environment and protection of the animals and the land override what Fisheries says and what Mines and Natural Resources says and all that kind of stuff. That's the sort of idea that I think we need with the new branch or new department of Aboriginal Affairs. It's that it can actually say to Fisheries, “Get—

[Mike Bossio, Liberal, Hastings—Lennox and Addington, ON]

To the table....

[Jean Teillet]

Yes. It can say, “Get to the table and get here with a mandate and do it, or if you don't, we're going to do it for you, and you might not like what we do. It's in your interests to come here.”

That means they need some kind of mandate from the federal government that gives them that hammer so they can do it in order to make this happen. I think that's a model we could look to, which we already have with the environmental protection.

I think Robert probably has some ideas.

[Robert Janes]

I want to give you a sense of how ridiculous it is now, and how it could not get worse. Songhees, for example, is one of the nations in my group. The total amount of land that has been identified for Songhees is a half hectare. Two parking lots might be available. The largest piece of available crown land in Songhees territory is the Royal Roads campus. Songhees, Royal Roads University, and Colwood have all entered into an integrated process to discuss the future of the campus and where opportunities might be, with reconciliation being the view. INAC is dying to talk about it at the treaty table.

DND is going through its disposition process, as laid out in the federal Treasury Board directive, and it's saying we don't have any role in the treaty talks. The treaty talks are not something we think about. We have decided we're going to send this to CLC; we're not really interested in hearing about any of this. How could this land be arranged in the best way to make sure there's something for the treaty process? It's so bad that the only way INAC is able to find out what's going on is that after we meet with DND, the INAC negotiators phone us to find out what DND is doing, because DND won't talk to them.

It's more than just the mandate letters. The mandate letters are the starting point, but even with things like the Treasury Board directives, which speak to how federal crown lands should be disposed of, you have to look at it and ask if just a custodial agency should be running that part of the process. If there's anything that can get first nations heated up, it's land and fish. To have a process that is just devoid of any meaningful mention of the treaty process is, frankly, insane.

[Mike Bossio, Liberal, Hastings—Lennox and Addington, ON]

Following on the logic that Jean put forward, under the Minister of the Environment, there's the Canadian Environmental Protection Act, the Environmental Assessment Act, the Species at Risk Act, navigable waters, Fisheries Act, there are a number of different acts out there. I somewhat agree that from a mandate letter standpoint, there aren't enough teeth to enforce the whole-of-government approach. Is it possible, though, with the Indian Act, to establish other legislative tools or mechanisms that can exist outside of it that will draw in and bring about that enforcement to bring them to the table, or is it up to the minister to hammer away at these different groups?

[Jean Teillet]

My understanding is that each minister has legislated instructions about how that department runs. I think this should be written into those pieces of legislation. Not just your mandate letters from the Prime Minister, but written into legislation.

Let me say one thing about implementation. We're talking about implementation of the treaty process, of getting to treaties, but implementation of the treaties once they're out has all these imbedded problems. They get filtered onto the other side of the treaty process, where people forget or don't know what's in the treaty, and they don't understand the relationship of the treaty to what they're doing. We just had a big blow-up in the Yukon about the financing of the treaties. The federal government tried to impose a formula funding agreement on all the treaty first nations up there despite the wording in the treaty. We had to fight them very hard, and we had federal Finance officials looking at me across the table saying, but our policy says this, and I kept saying, yes, but the treaty overrides....

[The Chair, Liberal, MaryAnn Mihychuk]

I hate to cut you off at this point, because it seems rather authoritarian from Canada.

[Jean Teillet]

Okay. We're used to it. It's what we live with.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you for that.

The final round goes to MP Cathy McLeod. We have a few minutes. Please go ahead.

[Mike Bossio, Liberal, Hastings—Lennox and Addington, ON]

Can I recommend that at the beginning of all of this that we inform all the witnesses to please provide further testimony outside this process, outside these hearings, so we can make them a part of our reports?

[Jean Teillet]

We have committed to providing you with written submissions in addition to our oral testimony today.

[The Chair, Liberal, MaryAnn Mihychuk]

Cathy, it's your turn.

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

Thank you, Madam Chair.

I have a quick aside and then I want to get into my questions. It's unfortunate we have so little time with each group because I think there's a wealth of information.

I want to quickly pick up on that Treasury Board divestiture process. If you have recommendations in terms of how that process should be looked at, not only in areas where a treaty is being undergone, but in areas where there are specific claims.... I had an example in my area, and I was quite stunned to see what the actual process was, so I welcome recommendations in terms of that piece.

I'm going to go to David.

I want to pick up on two points you made, and I think in some ways they're interconnected. One, you talked about the purchase of fee simple and we did hear that in many communities, especially in urban areas, it's a big issue, but it is also, believe it or not, an issue in the more rural communities. For example, the NStQ is in its final stages. It also relates to the public education piece and the inclusion of third parties as part of the way to some better solutions.

You have a rancher who wants to sell his land, and you have others who perhaps, with the decisions that are getting made, are losing some sort of key ability to move their cattle from summer to winter ranch land, and those solitudes aren't working. I guess I would talk about the purchase of fee simple, i.e., a willing rancher, a nice opportunity that is not taken advantage of, and the ability of the third parties to say, “I think we live in the valley together”. They've lived in the valleys together, and I think we've moved away from having some good conversations with other people in the community.

You have a short time for a complicated issue.

[Dr. David Schaepe]

There are all kinds of tremendous opportunities to acquire properties that are of interest to indigenous peoples when they're in fee simple hands. The relationship there sort of falls into the local level of municipalities and local governments that manage and affect fee simple properties. Number one, there's really no challenge to finding willing seller-willing buyer relationships to be able to acquire land as needed over a long period of time. Do not have cut-off points on that in a treaty kind of situation. Tell us which five properties you want, and you have 20 years to get that, and then that expires when the clock goes off.

We're saying that needs to not happen. We need to have the ongoing opportunity to buy lands that are of interest and value for economic purposes, for cultural purposes, for any number of purposes that this indigenous society needs when they're otherwise locked up into the peripheries of the hillsides and the mountains, away from the city centres, away from town centres, and away from economic centres.

There are ways to do this. It's not a challenge. The challenge is to change the policies, to bring fee simple properties into TSL under those authorities of indigenous peoples and their governing systems, and to work together on land use planning.

Again, back to the management aspect of things, share in the common vision and plan for what these areas should look like. That's an area that's been ignored, and first nations and indigenous peoples have suffered with the consequences of municipalities and local governments building around them with no consideration for their reserves and what become places where people live surrounded entirely by industrial zones. Incompatibilities have occurred, and I think there are ways to approach that in harmonizing land use planning and bringing in a fee simple acquisition policy.

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

I've always thought that having some of those third parties, whether it's local government or that education piece, which I think was your number 11....

I probably don't have enough time, but you talk about the agreements being living documents, and you've spent 25 to 30 years creating some solutions. Can you give me a really specific example of the living document concept? What might be something that is a good example of what needs to stay out of the four corners, as it is right now, but change with time?

[Dr. David Schaepe]

Jean talks about this a lot, a treaty, this type of agreement and its core needs to set out mechanisms for relationships, jurisdictions, and authorities. Then on the side, set out the details for how that gets done, the mechanics of it, the bureaucracy of it.

I'd say, in my own experience, the best example I could put forward is outside of treaty, but provincially in a strategic engagement agreement process that sets out how we're going to engage working through consultation processes, but it's very principled in its core document and allows for improvements, under a progressive improvement paradigm, to be made on the side that managers can do, and it doesn't have to go back to ministerial approval. It allows for the process to evolve and change with agreement between the parties so that it gets better and better over time. I don't see why that can't be a small example of what could happen on a larger scale within a more comprehensive treaty.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you so much. That concludes our panel for today.

I want to thank you for coming out. I know it's a very formal kind of process that we have here, and sometimes conversations get cut off, but I appreciate your understanding. Once again, I thank you on behalf of all of our committee members for coming forward. We appreciate your insight.

We'll be back to take the third panel at 11:30.

[The Chair, Liberal, MaryAnn Mihychuk]

Welcome, everybody. Let's get started.

I want to welcome you to the session, and recognize that we are on Tsawwassen traditional territory.

We are holding our first session of hearings on land claims, specific and comprehensive, starting here in British Columbia, where things are very active and very complicated.

You will have 10 minutes to present. We have two groups today for this panel, so 10 minutes each, and then we'll open it up for questions.

I would ask MPs to direct their questions, if possible, to the specific person they would like to answer them.