Would you remind them of further submissions?
Evidence of meeting #69 for Indigenous and Northern Affairs in the 42nd Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was process.
Evidence of meeting #69 for Indigenous and Northern Affairs in the 42nd Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was process.
Liberal
Liberal
The Chair Liberal MaryAnn Mihychuk
Yes. We are always receiving submissions, but they need to be in by the middle of October. We are anticipating that we'll have more hearings in Ottawa, but they might conclude by the end of October. It would be good for you to submit your presentations prior to that so we can use them in our consideration for the report writing.
I would like to welcome the Nlaka'pamux and the Nisga'a, who are here to present. I will open it up to you.
Chris, go ahead.
Christopher Derickson Councillor, Westbank First Nation
There is one more community, if you turn the page: Westbank First Nation.
Liberal
The Chair Liberal MaryAnn Mihychuk
I am sorry. We actually have three groups, so that's 10 minutes each. Let's get started, because I know there will be questions.
Please, go ahead.
Grand Chief Robert Pasco Grand Chief and Tribal Chair, Nlaka’pamux Nation Tribal Council
I'm Grand Chief Robert Pasco, and with me is the executive director of our tribal council, Debbie Abbott.
I want to acknowledge the homeland of the Tsawwassen people. I also want to say Ya dk shin wen wen, which is good morning to you all.
I'm hear to speak to our experiences with the specific claims process. One of the things right off the bat is that the terminology “specific claims” is the wrong one. We're really not claiming anything. We're trying to correct something that someone else made incorrectly. That's one of the reasons why we have such a problem. It's the language. Just like “comprehensive claims” which I heard this morning; we're not claiming anything. We're just trying to correct things to the way they should be.
I want to start out by giving you a layout of where we're from. I'm cognizant of the time. Our nation is in the Fraser Canyon. There is a transport corridor through the canyon. We have two railroads that go through there and a high-tension transmission line. We also have the Trans-Canada. The Fraser is also a famous river for salmon as you all know, but it hasn't been very good for salmon this year. It has been one of the worst years we've ever had.
Some of you have probably heard of Hells Gate. That's right within our homeland. I'm not sure who named it, but that's not our name for it. It's a rough passage area. When our reserves were set out, a lot of them were set out as fishing stations. As time went on, the railroad came in, and it took a chunk. Everybody has taken a chunk until we're left with very little. Whenever they wanted to take a piece of land, they just enacted something. They put forth a reason and legalized it in whatever way they thought was right without any consultation with us. Ever since the reserves were formed, we've been living with that problem.
I want to present a situation where I really became involved, and where we became involved. It was back in the early 80s when the federal and provincial governments, the CN railroad, and all governing agencies agreed there should be double tracking. They agreed it was going to go ahead, they signed off on everything, and then they established a federal environmental review panel. I was asked to sit on the this panel.
As we went around the countryside going through our hearing, indigenous people would get up and say, “Look, here's the problem we have.” As time went on, more and more of these things came forward. Our chairman at that time was Bob Connelly. He was in Ottawa. He was head of the federal environmental review panel. He stated that it wasn't in our mandate. We would go into our committee meetings after our session. Then the day came when we were writing the final report. There were all of these excuses that we didn't have a mandate to deal with indigenous issues. All of us told the committee that we were going to run into trouble. We were ignoring something here. The government had approved it to go ahead. Now we were just nickel-and-diming this thing.
To make a long story short, just when we were writing the final report, I got a phone call from Lloyd Hostland who was the head engineer at CN. He said to me, “Chief Pasco, we're going to start double tracking at your place.” I said, “Oh, yeah?” They were going to go 100 and some feet into the river there, and they were going to double track.
Anyway, I had to resign from the panel, and a lot of things happened.
Eventually, we got an injunction and it's a long-standing injunction that's going today. David Crombie was the minister at that time and John Fraser was the minister of fisheries. Anyway, they all came out. They could see the dilemma we were in. We went down a railroad track and we showed David Crombie some of the communities and some of the issues of the communities. There were a lot of them. He went back and said, “Okay, we're going to develop an accelerated process"—I'm going to run out of time. We got into the specific claims process, an accelerated process, and that was 30-some years go. I had no grey hair.
Robert Pasco
My hair was black. I weigh about the same because I've been very active trying to pursue this. It hasn't worked and that's the bottom line.
I can tell you more, but I'm going to leave it up to Debbie to tell you the rest because I took a lot of her time.
Debbie Abbott Executive Director, Nlaka'pamux Nation Tribal Council
Good morning.
I want to cut right to the chase and I'm mindful of the time. I have five recommendations I'd like to bring forward. We will make a full submission in time for the mid-October deadline.
First, I want to mention that we need to adopt the recommendations of the B.C. specific claims working group, and we need to continue to engage with first nations in B.C. directly. B.C. is so very different from the rest of Canada.
I have recommendations specific to dealing with our Nlaka'pamux claims.
The first is to visit our homeland. We need to ensure that any government official involved in claim negotiations and/or assessment visits the lands at issue in a claim with the leadership and community members advancing the claim. Many claims from our region arose out of circumstances where the government failed to show up to protect our interests. Resolving these grievances requires engagement on the ground.
The second is to consistently fund the work of resolving these grievances. Multi-year funding for research units would ensure efficiencies and work planning and execution. Fund our communities to participate fully in negotiations. Finally, fund whatever government department or independent body will be party to the process at adequate levels.
The third is to communicate with our nation directly. There are opportunities for efficiencies and cost savings for these transportation corridor claims. We have ideas on how to move these forward. Appropriate government representatives with decision-making authority need to engage with us directly.
The fourth is that joint oversight ensures government emissaries act in a principled and disciplined manner in keeping with the honour of the crown and UNDRIP. Joint oversight is the only way to keep the government accountable for its actions or inactions.
Finally, the last recommendation is to create fundamental systemic change, which provides for jurisdiction of the Nlaka'pamux and other indigenous nations.
I have one point. We've heard so many committees in the past. I have a question for you. After all of our efforts to inform the Government of Canada about specific claims and after all the reports and studies and commissions that have happened since 1948, what is the purpose of this study that you have undertaken now?
Thank you.
Liberal
The Chair Liberal MaryAnn Mihychuk
Very good.
We're going to move to the Nisga'a. You have 10 minutes to present.
Eva Clayton President, Nisga'a Lisims Government
Amaa hiihlukw.
Madam Chair, members of the committee, I will begin by expressing our appreciation to the committee for inviting us here to speak with you on the subject of the Nisga'a treaty. With me are two fellow officers, Secretary-Treasurer Corinne McKay and CEO Collier Azak, and Ms. Marg Rosling, one of the members of our general counsel. Our chairperson, Brian Tait, sends his regrets.
First, modern treaties are different. As most of you are no doubt aware, the modern treaty process, also known as the comprehensive land claims process, commenced in 1973 as a direct result of a decision of the Supreme Court of Canada in the Nisga'a case known as Calder v. Attorney-General of British Columbia. The federal government of the day, under the leadership of the first Prime Minister Trudeau and Jean Chrétien, then minister of Indian and northern affairs, agreed that it was preferable to negotiate a “just and equitable settlement of the land question”, as it was referred to by the Nisga'a Nation, than to continue to go to court over our differences. Shortly afterwards, in 1975, as our friend and your vice-chair Romeo Saganash knows so well, the James Bay and Northern Quebec Agreement was entered into, thereby becoming the first of the modern treaties.
Nisga'a negotiations began in 1976, but the road was not easy, largely because of the ongoing refusal of the provincial government to participate. The Nisga'a people and our leaders persevered. We participated in the constitutional process of the 1980s. We played an important role. We not only persuaded the Government of Canada and the provinces to include subsection 35(1) of the Constitution Act of 1982, which recognizes and affirms aboriginal and treaty rights, but we also successfully participated in obtaining subsection 35(3) a few years later, ensuring that the rights in land claims agreements are treaty rights.
Our comprehensive land claims table thereby became a constitutional negotiating table, as we negotiated the constitutional relationship to exist between the Nisga'a Nation and the crown. British Columbia finally joined our negotiations in 1990. An agreement in principle was reached in 1996, and the Nisga'a Final Agreement was completed in 1998. The Nisga'a treaty was the first treaty with indigenous people in Canada, and perhaps in the world, to fully set out and constitutionally protect our right to self-government and authority to make laws. This was controversial at the time, and led to a lengthy ratification process. Our people ratified the treaty in November 1998. The provincial legislature and Parliament each passed settlement legislation in 1999 and 2000, respectively.
Our treaty came into force on May 11, 2000. That was a historic day for the Nisga'a people. It marked the end of a 113-year journey and the first steps to a new direction. On that day, the Indian Act ceased to apply to us, and for the first time the Nisga'a Nation had the recognized legal and constitutional authority to conduct its own affairs. The Nisga'a treaty ended the uncertainty with respect to land ownership as well as hunting, fishing, and other rights throughout our traditional territory. It opened the door to joint economic initiatives in the development of our natural resources. Like other modern treaties, our treaty benefits all Canadians.
As the committee knows, there is a variety of different arrangements with indigenous peoples in different parts of Canada. Unfortunately, this has led to many people in offices in government failing to bear these important distinctions in mind.
For example, modern treaties are very different from specific claims agreements. Comprehensive land claims agreements deal with most or all of the entire range of rights and relationships between the crown and indigenous people. Specific claims, on the other hand, address particular breaches of past treaty or other obligations in restrictive matters such as Indian reserve creation or law. Comprehensive land claims agreements receive constitutional protection; specific agreements do not.
Similarly, there are first nations such as our friends from Westbank and Sechelt who have entered into self-government agreements that have eliminated most or all of the Indian Act from their governing arrangement but that do not deal with a great range of subject matter that makes up the content of modern treaties. Moreover, like specific claims agreements, those self-government agreements, while of vital importance to their parties, are not given constitutional recognition and affirmation under section 35 of the Constitution Act.
While we fully respect and acknowledge the efforts that all of those nations and other groups have taken to pursue their aspirations, members of the committee must not make the mistake of treating us all alike.
There have also been legal developments as a result of the Supreme Court of Canada rulings that, even where an indigenous people have not entered into a treaty or proven its aboriginal rights, the crown has a duty to consult with them about potential infringement or adverse effects on their asserted rights. Unfortunately, in our experience, government officials are now treating these asserted rights as being equivalent to the defined treaty rights that our people established only after years of struggle and compromise. I repeat, modern treaties, such as the Nisga'a treaty are unique in their content and constitutional character.
Unlike asserted rights or rights set out in specific claims or stand-alone self-government agreements, they have three essential aspects. One, they are solemn contracts, enforceable between the parties. Two, they are given the statutory force of law and are thereby enforceable against everyone and must inform officials' administration of other laws. Three, they are a list of constitutionally protected rights defining the relationship at the highest level known to law. For these reasons, modern treaties such as the Nisga'a treaty must be considered on their own without confusing or lumping them together with asserted rights, specific claims agreements, or a self-government agreement that has been negotiated without a comprehensive land claim agreement.
Implementation remains a challenge. Even though it has been more than 17 years since the effective date of the Nisga'a treaty, we continue to face ongoing challenges with its implementation. Too often, it has seemed as though as soon as the ink is dry on a modern treaty, all government officials forget about their solemn obligations and move on to other things.
This shared frustration led to a meeting in 2003 of all indigenous modern treaty signatories. We agreed to work together as the Land Claims Agreements Coalition in order to try to persuade the federal government to adopt a new modern treaty implementation policy based on four fundamental principles.
One, there should be a recognition that the crown in right of Canada, not the Department of Indian Affairs and Northern Development, is party to our land claims agreement and associated self-government agreement. Two, there must be a federal commitment to achieve the broad objectives of the land claims agreements and self-government agreements within the context of the new relationship, as opposed to mere technical compliance. Three, implementation must be handled by appropriate senior-level federal officials representing the entire Canadian government. Four, there must be an independent implementation and review body separate from the Department of Indian and Northern Affairs. This could be the Auditor General's department.
Thank you.
Liberal
Councillor, Westbank First Nation
I want to thank the committee for the opportunity to be here today. My name is Chris Derickson. I am a councillor with Westbank First Nation.
I was a bit perplexed when we were asked to come and present, because this was on specific claims and we don't have any specific claims or land claims before Canada right now. But I can give a perspective to the committee of something different, something like what the Nisga'a party just alluded to.
We are a self-governing first nation, one of the few self-governing first nations in Canada. I think we stand as a model that self-government in Canada can work, not just for our members, but for Canadians. If you've ever been to Westbank—I see some heads nodding—the transition between the local municipalities of Kelowna and West Kelowna is seamless. You cannot tell when you are on WFN lands.
In fact, I heard a story once of an INAC official, or somebody, who was on our reserve lands and was talking to somebody about Westbank First Nation. He looked out over our reserve lands, which included a golf course, hotels, and residential development, and said, “You know, I've heard about this Westbank First Nation. I'd really like to go visit them and see their land someday. Where are they located?” Everyone in the room laughed, because they were standing on our land.
I am an example of somebody who has grown up, for the most part, outside of the Indian Act. I've grown up in a community, and I've seen changes in our community to the point where, while I've studied the Indian Act in school, I do not know the Indian Act in practice. We have members coming up who don't even remember the poverty that used to exist. Now, we have not come to the point where we've solved all of our social issues. Things aren't perfect, but we are managing a new type of challenge, and that's what I want to share with the committee today, and hopefully bring to the forefront of Canada's mind that you can't forget about these other agreements that exist, like the Nisga'a treaty and the Westbank First Nation Self-Government Agreement.
If you were to see our lands and the development, I think it would be very clear and you'd be able to figure out very quickly that there has been a lot of change in 10 years. The rate of change is absolutely astronomical. Our economy has grown at a rate about 20 times faster than the B.C. economy. This includes the downturn in 2008. When everything else was crashing, we continued to grow. We just had a population increase last year of 27%. That's non-member residents on our lands. If we were a municipality, we would be the fastest growing municipality in Canada by far. We've outpaced the growth of the district of Lake Country, the city of West Kelowna, and the city of Kelowna. We've done this all under our model of self-government, which includes a WFN constitution, a comprehensive community plan, and several laws, all of which have been developed by our members. This brings a level of certainty and predictability to our governing structure that allows investors to come in, and not just investors—non-member, non-indigenous residents moving in by the hundreds every year, and continuing to move in.
Of course, the growth we are experiencing is not sustainable. In fact, I would argue that we are coming to the end of what's sustainable under the current agreement we have with Canada, in particular the fiscal relationship we have with Canada. With all the commerce taking place on our land, we've contributed about half a billion dollars in GDP to the Canadian economy since 2014. We have also raised taxation revenues for Canada, just through the commerce that exists on our land. About half a billion dollars in select taxes, tax revenues have been collected by Canada from our lands. In the province of B.C., I think that number is up around $367 million in taxation revenues collected.
Yet, we still exist under this archaic FTA process with Canada, where we negotiate for a financial transfer from Canada just to cover the basic services that we provide to our members. Meanwhile, we see all the revenues coming into our lands that we don't have access to. We think that if we are going to move forward beyond self-government, if we want self-government in this country to be successful, then we need a fiscal relationship that will support that success in the long term, and we need to see a more progressive and modern approach to that fiscal relationship.
Now we are in negotiations with the other first nations across Canada that are self-governing to redraft a new fiscal policy, but we would urge this committee, we would urge the government, to fast-track that because we, at the basic level, cannot provide the same level of municipal services to our residents that a municipality can. We don't have access to the gas tax, to all these infrastructure grants. We're doing it where can by working with the local municipality and regional district, and we're also doing it by strong and prudent financial management. We collect about $12 million in property taxes from our member residents, and we know over the long term with the growth we're experiencing we need to continue to find new ways to raise revenues and to generate new revenues for Westbank First Nation.
If I can just switch gears, because we're also involved in another table with the Okanagan Nation called [Inaudible—Editor], the reconciliation table. We're one of the six members of the Okanagan Nation Alliance. We're currently negotiating with Canada how Canada can deal with the nations, and the nation rebuilding that has to take place for aboriginal title to be recognized in the province of B.C. Under the new Chilcotin regime, we know that aboriginal title rests with the nation and not with the individual communities, so we see Canada having to take a tandem approach to rebuilding nations at the nation level, while still offering first nations the opportunity to become self-governing at the community level. There is an opportunity cost. It took 15 to 18 years to negotiate self-government. I think about Chief Pasco next to me. He said he was young in an expedited claims policy process. We have done a good job of creating an economy based around negotiations. If these negotiations are fast-tracked or if there's an easier mechanism for first nations to enter into, think of how far ahead these other first nations could be. We know WFN's not unique. Plenty of first nations around this country are in urban, semi-urban, or even rural communities, where self-government would only benefit their people. As I said, not just our people, but Canada benefits from these agreements as you can tell from the revenues we've raised, the jobs that are available on our land—400 businesses—but we need that tandem approach.
I would also like to encourage Canada to continue down the path of pursuing these reconciliation tables and ensuring that they're properly funded, ensuring that they have a proper mandate to negotiate with the proper rights holders and to ensure they're supported by the proper policies.
have three recommendations that we'd like to leave with the committee.
The first, which I just finished speaking about, is strengthening the importance of the rights recognition and self-determination table between the Okanagan people and Canada.
The second is to replace the various comprehensive land claims policies, and the Government of Canada's approach to implementation inherent in the negotiation of aboriginal self-government, with a new recognition policy that's consistent with UNDRIP, the 10 principles recently released by Canada, and the direction from the courts.
Finally—and this is something I want to stress—priority needs to be placed on ensuring that Canada's approach to financing self-governments is modernized and keeps pace with the growth, especially first nations like Westbank. I can't say we're barely keeping up, but we're on a very steep learning curve. It's important that these self-governments are provided with the revenues required to support the ongoing implementation of self-government.
With that, thank you for your time.
Liberal
The Chair Liberal MaryAnn Mihychuk
Thank you so much for those very interesting three perspectives.
We're now moving into the question period, and we're going to start with MP Anandasangaree.
Liberal
Gary Anandasangaree Liberal Scarborough—Rouge Park, ON
Thank you very much for that very insightful presentation.
I want to focus primarily on comprehensives claims and modern treaties with respect to the differences between communities and nations, and how that process evolves and how you reconcile that. If nations are across a number of jurisdictions, for example different provinces, what mechanisms are currently available? And if they're not available, what should the government be doing to encourage the collaboration of communities and nations?
This is for the Nisga'a and the Westbank.
Councillor, Westbank First Nation
To tackle the first part of your question, you asked about the difference between nations and communities.
We've been segregated into these made-up Indian Act bands that were imposed upon us. Meanwhile, we always saw ourselves, at least in the Okanagan, as being a part of the larger Okanagan nation. There are currently seven communities within the Okanagan nation that make up what we see as the Okanagan nation. We respect the autonomy of each first nation within the Okanagan nation to pursue their own interests, to pursue their own journey towards self-government, or not. Not all Indian Act bands are ready to move out from under the Indian Act. I think we respect that. First nations, and I speak generally, all see themselves as being part of a larger nation, of a community of first nations, and being a part of that whole.
In terms of the second part of your question about what mechanisms are in place for those nations to coalesce—
Liberal
Gary Anandasangaree Liberal Scarborough—Rouge Park, ON
To support the communities to reconnect as a nation.
Councillor, Westbank First Nation
Within the Okanagan nation we have what's called the Okanagan Nation Alliance . It's basically a society where all the chiefs and councillors meet on a regular basis to address issues that are on a national scope for us.
Did you have another question?
Liberal
Gary Anandasangaree Liberal Scarborough—Rouge Park, ON
Yes.
The cross-jurisdiction, but I don't think that really applies to you, because you are based in B.C. primarily.
President, Nisga'a Lisims Government
The Nisga'a Nation is set out under the treaty as a federated system where we have four Nisga'a village governments, with the Nisga'a Lisims Government being the central government. As well, we have what is known as a Nisga'a house, Wilp Si'Ayuukhl Nisga'a, where we meet every four months as one nation. The mechanisms that provide for this federated system come from the Nisga'a treaty, the appropriate Nisga'a legislation that sets out these mechanisms, as well as the Nisga'a constitution.
Thank you.
Liberal
Gary Anandasangaree Liberal Scarborough—Rouge Park, ON
An earlier speaker in a previous panel said one of the objectives is to basically get out of the Indian Act altogether; get the nations out of the Indian Act. It seems like both nations have managed to do that in the last 20 years or so.
Reflecting on the first phase of this, what kinds of control mechanisms have you been able to develop for key social services such as education and health care? Has that improved the lives and outcomes of individual members of the nation?
Corinne McKay Secretary-Treasurer, Nisga'a Lisims Government
Within our treaty we have several opportunities to pursue different programs for our people. We have a programs and services delivery act where we cover programs. We have requirements for education. We provide post-secondary education, we provide funding through School District No. 92 for K to 12, and we have funding for a nurses' school and headstarts. Within that programs and services delivery act, we also have child and family services where we have an agreement. It was incorporated through our fiscal financing agreement in the last round of negotiations. Our general counsel Margie was involved with that. We have delegated services to the Ministry of Child and Family Development to Nisga'a child and family services.
Liberal
Gary Anandasangaree Liberal Scarborough—Rouge Park, ON
Ms. McKay, can I ask you about outcomes?
For example, if you focus on education, compared to pre-agreement and pre-governance, do you see improvement in education? Are you able to share any numbers or any empirical evidence with us suggesting that the outcomes are improving as a result of self-government having control over education, for example?
Secretary-Treasurer, Nisga'a Lisims Government
We have within our nation three doctors, Ph.D. graduates. I have been able to receive a master's degree in business administration through the support of the Nisga'a Lisims Government.
Our former president, the late Dr. Frank Calder, was a table officer for the Native Brotherhood and lobbied Indian Affairs for support for our students for first nations education. We just recently had an education conference where we had role model panels that showcased all of the work that's been achieved through the support of our government.
Liberal
Conservative
Cathy McLeod Conservative Kamloops—Thompson—Cariboo, BC
Thank you again to the panel for some very interesting presentations. I think what we have here are three very different examples of nations and communities choosing different paths in terms of how they feel they need to move forward. Perhaps it would be fair to say that it's not a one-size-fits-all path for particular nations or communities in terms of what they want to move forward with and where they want to go.
We did have a question from Debbie Abbott, and I want to quickly respond to it. We hope, through your testimony, that.... Again, the world is constantly changing and the court cases frequently are giving new direction. Like in the treaty implementation process, I think we need to continually reflect on what we're doing, how we're doing it, and where we're going. Certainly, my hope is that we're going to have some very solid recommendations that the government is actually going to take action on. That's speaking for me. I was very keen to look at what was happening and to come out with some recommendations to move forward on.
I have a number of questions, and I hope I'll have time to get to everyone.
I was having a conversation with my colleague Romeo Saganash on this whole issue of finality that was embedded in the concept from the federal government, which we heard in previous panels. He said that we've had to make additions and corrections many times over the years, so it was not really ever final.
For the Nisga'a, have you had many changes that have been added? Can you talk to me a bit about what's happened and where that's gone?