Mr. Schaepe will start off.
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.
Dr. David Schaepe Technical Advisor, Treaty Negotiating Team, Sto:lo Xwexwilmexw Treaty Association
Thank you very much. It's a pleasure to be here on behalf of the Sto:lo Xwexwilmexw Treaty Association. Our chief negotiator, Jean Teillet, and I are grateful to have this opportunity and are here on behalf of our six chiefs in leadership: Chief Maureen Chapman, Chief Angie Bailey, Chief Derek Epp, Chief Mark Point, Chief Alice Thompson, and Chief Terry Horne, who is also a member of our treaty negotiating team.
I'm going to run through primarily 11 points we've put together that we want to bring to your attention with regard to issues around the comprehensive claims process, specifically, though, as it relates to the B.C. treaty process, with which we're engaged.
I also want to acknowledge being here on Tsawwassen lands in the Tsawwassen treaty nation area.
The content we're providing in this presentation is based on experiences of the Sto:lo Xwexwilmexw Treaty Association in comprehensive land claims negotiations and in participating in the B.C. treaty process since 1995—for the past 22 years. We're currently approaching the conclusion of stage four—agreement in principle—out of the six steps of that process.
This presentation, as I say, focuses on 11 key points and recommendations that are drawn from our experience over those past 22 years. We'll also be providing a written submission in a follow-up as this is a pretty high-level bullet-point type of presentation to begin with. We do need the time and more substantial space to add the detail that we feel we need to inform these points more fully.
First, I'll speak to certainty provisions with regard to rights recognition, as opposed to extinguishment. Second, we'll speak to core treaties and the need to review and transform the process of treaty as it links to the rights recognition basis and to the implementation of UNDRIP. The third part substantially is the introduction of shared decision-making over land and resources off treaty settlement lands.
Fourth is the area of jurisdiction and law-making. Fifth, we'll speak to fee simple land acquisition. Sixth, we'll speak to treaty settlement land status and administration. Seventh is negotiation funding, debt forgiveness, and grants. Eighth is community well-being catch-up and the need for fiscal reform to allow for that catch-up to happen.
Ninth is community well-being social reform and the need for social policy reform, specifically around indigenous children and families. Tenth, we'll talk to stage four in the B.C. treaty process as a barrier to treaty-making. Finally, on point 11, I'll talk to public education and reconciliation and the need for more substantial public education and understanding of reconciliation.
I'll go fairly quickly through these points with a bit of detail.
The first point is with regard to the need to change certainty provisions. We need to do that, and our recommendation is to immediately move towards the implementation of a rights recognition model and language consistent with UNDRIP and a human rights foundation to treaty-making fundamental to reconciliation, and not pursuing and eliminating altogether any aspect of extinguishment as a factor of treaty-making and the core to what treaty-making is. Again, that also moves us away from the current language. It still embodies to some extent extinguishment when we're talking about modification in non-assertion models. We need clear language that is specifically and explicitly based on rights recognition and non-extinguishment.
Extinguishment is a non-starter for many of our community members and fosters an ongoing critique of treaties. When we move into rights recognition, it opens the door to a wider range of support . Also, this moves us into the next point here, which is a wider range of options for treaty-making that are not full and final, where the rights are not nailed down in the four corners of the treaty, as is all too often the objective of treaty-making at this point in time.
The second point is on core treaties and the need to review and transform the process of treaty-making. We see core treaties as the foundation for developing relationships across the spectrum of rights, based on the principles of the Tsilhqot'in decision and the implementation of UNDRIP. That includes authority, management, access and use to be implemented, revisited and revised, and updated as a matter of creating a living treaty model, the evergreen living tree model.
Core treaties can contain elements of but not necessarily all the rights that exist. We don't need these to be considered full and final, because we don't want them to be considered a full and final agreement but rather a treaty. In the SXTA, we've resisted the idea of this being a final agreement. We've insisted on it being called a treaty, an agreement establishing relationships between nation and nation—again, consistent with UNDRIP and with Canada's 10 principles—and have said that these relationships in these documents and these treaties can be and should be reviewed every few years in an orderly process for change.
Tied to recognition, core treaties, and treaty-making is the aspect of shared decision-making as something we're putting forward as, again, substantial, and that needs to be developed, implemented, and recognized within treaty-making. The sharing of decisions, based on the recognition of title that indigenous peoples are owners of the land and the resources and therefore have a say in how those lands and resources are used and managed, is substantial. It is also an element of the fiscal policy that we mentioned before. Fiscal policy is an element of the resources that are being extracted, and where, when, and how that happens needs to be a factor of the decision-making by indigenous peoples, but also, the revenues resulting from that extraction need to be understood as part of the revenues of the indigenous peoples themselves.
There's a Halkomelem saying that will be challenging for the interpreters. [Witness speaks in Halkomelem] It means: “This is our land. We have to take care of everything that belongs to us.” Very simply put, it expresses that idea: the concept of ownership, title, and the need to take care of and steward the land. Shared decision-making off treaty settlement lands is a significant factor of the process to be reformed.
On what we'll call jurisdiction and law-making, we want to say simply that there's currently too much bureaucratic detail, particularly as included by B.C., in treaty documentation and treaty text. Treaties should simply set up prophecies for relationships. Implementation should allow for and provide mechanisms to be worked out, developed, and changed as needed, through orderly process, much of which could be done as side agreements to trim down what is central to the treaty itself.
On fee simple land acquisition, in many cases crown land is limited, particularly in southwestern British Columbia. It's also a critical need. There is a critical need that exists for fee simple lands to be included in a substantial quantity as treaty settlement lands. Mechanisms for fee simple land acquisition under a framework of willing seller-willing buyer should accommodate the need for incremental acquisition over an extended period of time. This shouldn't be constrained by relationships with local municipalities. This should be something that can be done over time without interference from local governments.
Treaty settlement land status needs to be a unique status, not a subsection 91(24) status or provincial fee simple status, and something that recognizes indigenous title apart from the lands set out under the Indian Act or otherwise set out as provincial grants. That motivates a need for an indigenous title land registry system that can be taken care of affordably and in an available way for treaty and other first nations to administer.
On negotiation funding and debt forgiveness, debt accumulated through loans to first nations supporting comprehensive land claims processes needs to be forgiven. The debt issue is a huge disincentive to treaty participants and critics both. Capacity funding support needs to be granted and loans need to be forgiven.
As I said, we'll be submitting a written version of this in more detail.
What I want to say is basically around the need to reform fiscal and social policies and the ability to govern and have direct participation in taking care of children and families. We've received resistance to that, but when we're looking at the need as an outcome or an element of treaties that's substantial in order to deal with this catch-up period, to bring the status of health and well-being in indigenous communities up to a common level and standard, that motivates the need for reform in fiscal relationships, taxation, OSR, and involvement in jurisdiction on the fundamental elements of society, such as children and families.
Next, stage four is a barrier to treaty-making. Simply, it takes too long, it's too complex, there are too many hurdles, and what we hear from the communities is why is it taking so long? Why don't we see any results? We need the revision of stage four to provide earlier and greater access to a more substantial tool kit, and pre-treaty land transfers, protections, and benefits. We need to substantially look at how stage four is taken care of.
I'll end with education and reconciliation. The government needs to develop meaningful public processes filling the gaps between truth and reconciliation, so the public can better understand why these processes are in place, what we're trying to do here, what the needs are for supporting the treaty process and comprehensive claims.
Thank you very much.
Liberal
The Chair Liberal MaryAnn Mihychuk
Thank you.
Please, go ahead and do your presentation. You have 10 minutes.
Legal Counsel, Te'mexw Treaty Association
I'd like to acknowledge that we are on the territory of the Tsawwassen First Nation.
The Te'mexw Treaty Association, which I act for, represents five indigenous nations on southern Vancouver Island that are in modern-day treaty negotiations. They each are signatories to the historic Douglas treaties, so they are somewhat different from many of the first nations. Their treaty negotiations are largely defined by the fact that they are in urban—for example, Songhees is in Victoria, for all intents and purposes—or suburban first nations, and much of their land is under fee simple title, either in cities, or under the E & N Railway grant. Despite these challenges, we've signed an agreement in principle, and are moving aggressively towards reaching a final treaty agreement, but we do face some significant obstacles, including the continued shortage of land, and the lack of a federal mandate around fisheries.
The uncomfortable question that many of these first nations ask, and which comes to the mental block we've been talking about today, is, if Canada and B.C. could not honour the historic treaties that Canada has signed, or the imperial government signed, how is it that we can expect that the governments of Canada and British Columbia will honour modern treaties? When we talk about moving away from the Indian Act, there is more to that than just saying, presto, the Indian Act disappears. For these first nations, they need to know that they are going to secure the core resources that they need, the core jurisdiction that they need, to ensure that they can continue to maintain their nations as living integral communities within Canada, with their own systems of government, able to support themselves, able to maintain their cultures, and able to keep themselves together. That is the thing we are struggling with in the treaty negotiations, how to secure that given the peculiar history of Canada.
There are really two points I wanted to make to you. I'm largely addressing this to you as the federal leadership. The first is that there has to be real leadership in committing to what you've heard from several speakers today in terms of moving away from the concept of treaties being full and final. There has to be a different concept that sees a relationship that can evolve, that allows for things to be tried out to develop the stronger relationships between first nations that respects their existing rights, respects their existing cultures, and does not insist that they draw a line on the past and move on.
The second point I want to make is about how the federal government works. The federal government has to practically address the reality that it does not have an effective mandate process. It does not have a process that allows it to act creatively, that allows first nations to explore ideas. It is constantly behind, it constantly causes delay, and this reflects the way in which the government departments work in a very siloed fashion, without core leadership.
Let me speak to my first point. The modern treaties have constantly faced this question of certainty. There have been various terms used over the years to achieve this: extinguishment, cede, release, surrender, modification. Some people even have contentions about the non-assertion model. At its core is this idea that the modern treaties are supposed to be full and final settlements of all the issues of the first nation. When you're down in the community talking to the community about this.... I have go out as a non-indigenous lawyer to talk to rooms full of people who aren't going to talk about this in a legal way, but they're going to ask me, how it can be that we can be asked to draw a line on the past and say, okay, the rights that we had, the culture that we had, the history that we had, the grievances that we had, and the concerns that we had are now in the past? Now, we have a shiny new document with many, many, many more words, most of which nobody can understand, except a few lawyers and perhaps a few judges, and that we are now moving forward with that being our government, those being our rights, that being our means of expressing our culture.
What many first nations see is that the modern treaty process, in many ways, has become a way for Canada to draw a line on its colonial past, and to ask for forgiveness—and in fact, insist upon forgiveness—before first nations are able to move forward.
First nations see this being done in a context in which they don't even get a chance to test drive the relationship. In many ways, first nations look at this relationship as one in which for 150 years, one bad thing after another has happened to first nations. They are hearing Canada and British Columbia say to them, “It will be different this time.” Needless to say, a lot of ordinary people in these communities, and a lot of leadership in these communities, look at me and say, “Why should we believe you?” From our point of view, I actually think the answer is to stop asking this. Instead, look at the modern treaty negotiations as a chance to negotiate arrangements that recognize that first nations are coming to the table with existing cultures, coming to the table with existing rights, and coming to the table with grievances that don't have easy answers. The modern treaties are a chance to create a framework in which those problems can be managed, where, over time, people can see if these solutions are working. They can evaluate how the treaties are working and adapt them to changing circumstances—or adapt them because they fail, adapt them because they haven't achieved the ends that everybody hopes they will achieve, whether it's social ends, fiscal ends, or the maintenance of culture.
In Quebec, the Quebec government worked out arrangements with the Cree that, for example, really worked on a time-limited basis. In a sense, some people joke, it's “renting” certainty. The federal government has been dead set against this approach historically, although there has been a recent openness at the civil service level to exploring new approaches. In order for those approaches to stick, the political leadership is going to have to fall behind in the same position.
With that, I'll move to the second point, which is about the reality of the way in which the federal negotiators carry on their work. Each department has its mandate. Each department has its objectives. Each department has its goals. The only department that really has reconciliation as one of its goals is the Department of Indian Affairs—or Indigenous Affairs, or Aboriginal Affairs; the name may change from time to time. The reality is that the federal negotiators largely come to the table and say, “This is what this department needs. That is what this department needs.” Largely, since they don't have the land, they don't have the money, they don't have the taxation power, and they in fact play very little in the way of an active role in negotiation, leaving it to the province to really lead the way.
The process of actually getting any mandate change from the federal government is painfully slow, largely because the federal negotiators have to walk as water carriers, going back to each agency, trying to convince each agency to change their position when they have the time to think about it. Then somewhere down the road we'll hear back from the INAC people, saying, “Oh, here's what DND, Finance, taxation, CIPO...or whoever has the say.” That has to change. We need to see the custodial agencies engage when they have land. If we're going to talk about recognizing indigenous intellectual property, then CIPO, the Canadian Intellectual Property Office, has to be engaged. It can't just be a messenger. The taxation people can't just drop around once in a while to let us know what the tax regime is going to be. They have to be actively involved in dealing with individual nations on what's happening there.
With that, I'll make a final comment on what I think could be something that's great or something that's a disaster. The proposal that's on the table now to divide Indian Affairs or Indigenous Affairs into two departments is a danger and an opportunity. It's an opportunity if the new ministry to lead negotiations is given a real mandate and real power to lead across departments, to bring the idea of reconciliation out across the government, and to create a whole-of-government approach to reconciliation, not just to consultations. The danger, I fear, is that we could end up with yet another silo, except one that now doesn't even have access to the programs and services that Indigenous Affairs presently has, and is yet another supplicant having to work around each of the departments, trying to get a mandate. This is just not a way to run treaty negotiations in this day and age.
Thank you.
Liberal
The Chair Liberal MaryAnn Mihychuk
Thank you very much.
We're now moving into the question and answer period.
We'll start with MP Harvey.
TJ Harvey Liberal Tobique—Mactaquac, NB
Thank you very much, all of you, for being here.
Certainly as we found with the first session this morning, these opportunities don't have near enough time to discuss the issues at hand, but give us a brief snapshot into them.
I want to start with Mr. Janes on your three points. I'll start in reverse order.
Would you like to speak a little more on how you feel the opportunities and challenges surrounding INAC as it pertains to indigenous land claims could be best addressed?
Legal Counsel, Te'mexw Treaty Association
First, the new department has to be given sufficient resources to run the negotiations. One of the practical realities that you see on the ground is that there aren't the resources in terms of personnel, policy, etc., to really advance negotiations. Many of these files are run off the side of peoples' desks, to be blunt about it.
Second, and I don't know how to do this—I don't know the mechanics of government well enough—but whenever you deal with any ministry, they live in fear of Treasury Board. You never hear of anybody saying, oh, we'd like to do this and we don't have to check with Treasury Board. Everybody knows that Treasury Board has this overarching mandate, which everyone lives in terror of and that everyone wants to appease.
To some extent, the system has been put in place, particularly for the agencies that deal with indigenous people, to have the new department thought of that way. When the Department of National Defence is making decisions about disposing of land, for instance, they think they have to check in with the new department directed to reconciliation and negotiations. The people in Finance have to think they're not just running their own little negotiations, but they have to be integrated with the larger mission being designed by the new department.
As always, the power of departments to some extent depends on their ministers and on all kinds of political circumstances that are beyond anyone's control. However, there has to be a real mission delivered to it, which probably should be reflected in the letters to all the ministers that give them a chance to run reconciliation across the country. I don't know exactly how you do that, but I think that with the tools that are available, whether in mandate letters or the legislation creating the ministry, the creation of policy documents has to be addressed.
Liberal
TJ Harvey Liberal Tobique—Mactaquac, NB
In the first part of your speech, you spoke about land as it pertains to first nations, the lack of land specifically, with the bands you are representing, as well as a lack of a mandate around fisheries. Would you like to elaborate a little on the mandate around the fisheries piece?
Legal Counsel, Te'mexw Treaty Association
Fisheries negotiations at our table broke down about 10 years ago. About 16 months ago, they were revived. A federal negotiator was appointed.
Without speaking out of school too much, we've spent 16 to 18 months and, as of late, we've been told that they do not actually have instructions to be able to agree to a table of contents about what should be in the agreement we're working on. They don't have a mandate to talk about what type of fish they can negotiate about, and they don't have a mandate to talk about how much fish.
It's literally at that level. There are people coming, well-intentioned people, nice people, but they have not been given any instructions. It's largely I think, one, because DFO is somewhat paralyzed; two, there may be staffing issues. But fundamentally, this is not a priority.
Liberal
TJ Harvey Liberal Tobique—Mactaquac, NB
Mr. Schaepe, you spoke about the difficulties with stage four of the process.
In your opinion, what would a refined stage four look like? How could it be better addressed?
Technical Advisor, Treaty Negotiating Team, Sto:lo Xwexwilmexw Treaty Association
Okay, I'm going to also open it up to Jean to help with input on questions. Jean has tremendous experience.
We've been in stage four since 1998. That vast amount of time the SXTA has been in treaty, over 22 years, it has been in stage four aiming to develop an agreement in principle. Ultimately, when you're looking at the extent of detail that's required in negotiating substantially the 28 items that were set out as substantive issues to be addressed, very quickly, in stage three, in stage four there is far too much detail, in my opinion, in having to flesh out the quantity of detail in each and every one of those chapters.
It's a complicated process for sure. It does take a long time for sure. It runs into issues with the table being shut down during periods of election, and that has happened quite a few times in our experience, particularly on the provincial side. There is the turnover in negotiators, again particularly on the provincial side, that costs us time. Almost every time you get a new provincial negotiator it takes a year to get them up to speed to understand what is going on. There have been inefficiencies in terms of the human resourcing of the tables that's taken time from us, and there is this abundance of content that is required to get into stage five.
I think there could be refinements on both sides of those and there could be a way of flowing through—in not so much a singular step-wise process—the need to go from developing a list of substantive issues to a conclusion without placing such a huge gap between the point so far down the road leading to a final—I won't say final, leading to a treaty.
Liberal
The Chair Liberal MaryAnn Mihychuk
Does number seven, capacity support funding, feed into that point as well?
Liberal
TJ Harvey Liberal Tobique—Mactaquac, NB
It does because of the amount of time you're taking. Certainly it's an irritant and a substantial one when the longer you take, the more debt you are accumulating. There are tool kits that come around when you get to certain points of time in terms of incremental treaty agreement possibilities, early transfers of land, that could all come sooner, and at the end of the day it's all aggravated, including the debt issue, as the longer it takes the more debt is accumulated.
Liberal
Conservative
Kevin Waugh Conservative Saskatoon—Grasswood, SK
Thank you.
I'm just going to pick up on that on the SXTA. What kind of numbers are we looking at when you say “debt forgiveness?” You have done 22 years on this. What are the kinds of numbers when you say you want debt forgiveness? I understand you are only one area, so....
Jean Teillet Chief Negotiator, Sto:lo Xwexwilmexw Treaty Association
Let me tell you this first. We started off with 19 bands in treaty. Along the way, because of the length of time and the absolute intransigence on the part of the federal mandate to move anything other than throwing something down on the table and not negotiating.... For a lot of these things, there are no negotiations going on. A lot of bands left in frustration, and the whole thing collapsed in 2005. Then six wanted to come back, and Canada insisted that the six had to assume the debt of all the other 13 bands that left or they wouldn't let us come back into the treaty process. We have about a $13-million debt, and it's not even ours, but there is an insistence that we're supposed to pay that. I regard that as highway robbery and absolutely inappropriate behaviour on Canada's part to insist on that. That's the debt load.
Just to tie the debt load into the previous question from Mr. Harvey about the stages, part of the problem is that the stages started out.... I've been in the treaty process for a long time. I started out on the Yukon treaties, then the Northwest Territories treaties, and now in B.C. I've been at this since 1992, through three totally separate treaty processes. I've watched these stages move from ideas. You go to sort of an idea of a framework agreement, and then you move into agreement in principle where the agreement in principle is about 12 pages long. Now they are imbedded in cement. There are like 25-foot walls around each stage. The agreement in principle is no longer an agreement in principle. It is a final agreement. They are not principles anymore, it's the whole agreement in there.
The problem is this: there are different tools, money, and options that are available to you at each stage. As stage four got bigger and became the whole ship, the tools that you can get in stage five become less available to you. This is the rigidity that has sunk into the process. That's why it's damaging. The fact is, that's where the money is all accumulating, because of this instance on virtually getting final agreement in the AIP process so that the final stage, where there's more money available to you to do all the kinds of work that you need to do, where there are possibilities of early transfer of land so you can get some economic development going, is held off until the last stage. None of this is helpful. All of it just creates more debt load. It creates more bureaucratic mess, and it leaves you in this long period of time.
We're in a position where even our Canada negotiator says that our table has been put through more than any other treaty table in this country. They still won't give us an AIP. They keep moving the markers. We have to do this; we have to do that. They're making it virtually impossible for us to get an AIP. This is not fair negotiating, and it's Canada doing it, not B.C.
Conservative
Legal Counsel, Te'mexw Treaty Association
We've managed to get through the first stage, but I do want to underline something that is sort of a real evil that's easy to miss here.
Fundamentally, the message is that the federal and provincial governments have the staff to negotiate about five final agreements at once. You create a real competition between the people who are at stage four trying to get to the head of the list so that when the next person pops off stage five they can be in there. If you don't make it on to that list, then you're stuck with a real dilemma. This goes back to your money point. You can't just down tools. If you fire your adviser, your lawyer, or your negotiators and say that you're going to take a five-year break until you're ready to step in to the queue again, you'll never reassemble that team. It's gone. Your choice is to keep on incurring debt to stay alive in stage four, or you die in stage four. That's one of the things that's really ramping up the debt, sometimes non-productively.
Conservative
Legal Counsel, Te'mexw Treaty Association
I think the total number was mentioned here this morning. I think across Canada—
Legal Counsel, Te'mexw Treaty Association
Yes, the total number is $528 million.
Conservative
Kevin Waugh Conservative Saskatoon—Grasswood, SK
Wow.
In the one minute I have left, to go back to your opening statement, David, can you comment on the foundation and relationship of your core treaties?
Technical Advisor, Treaty Negotiating Team, Sto:lo Xwexwilmexw Treaty Association
The core treaty fundamental idea here, of implementing UNDRIP and a recognition of a human rights-based approach to treaty-making, links back to core treaties—meaning, to create a treaty that sets out relationships, including jurisdictional relationships, authorities, relationships to land and resources, and so on, with aspects of rights being recognized but not having to do that fully and finally. A core treaty is something that perhaps identifies priorities for moving forward in relationships under the rights recognition paradigm, but not to the extent that it has been, or what treaties were set out to be in the past and that still pervades the present, where they're full final and all of the rights are defined and tacked within the four corners of that treaty, set in stone and not to be moved from there. We're not creating potion stamps anymore. The core treaty would allow for a progressive approach to recognizing, defining, and reconciling rights and relationships between nations.
Again, it may not include chapters like fish. You might be able to proceed without having to include all of those things.
Liberal
