Indigenous and Northern Affairs Committee on Sept. 27th, 2017

[Barry Hunter, Negotiations Advisor, Athabasca Denesuline Né Né Land Corporation]

I have another little piece to add to that. I agree fully with what Wayne said. I think your question presupposes that we didn't try to deal with the territorial governments. We've tried, for the majority of 18 years. At some point, one reaches the conclusion.... You know, doing the same thing over and over again and expecting a different result is the definition of insanity. We've reached that point.

In its bilateral offer to the Dene, Canada has reached the point where it's time to move ahead. It has literally been 25 years that this has been going on, and the last remaining obstacle is really the territorial one. While they can appreciate that it's an incredibly politically fraught difficulty, the fact is that every effort has been made to fix that, and it just hasn't happened.

Thank you.

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

I have two questions. One is with respect to the positive side of this, which is the different nations coming together in this effort, so I'd ask you to briefly talk about that if you can.

The second one—and you may not be able to share that, given that discussions may be ongoing—is with respect to finality, full and final release. Is that on the table, or are you going based on a different approach that will be ongoing dialogue as opposed to finality?

[Wayne Wysocki]

There are two questions. The answer to the first one is that you are absolutely correct. The indigenous groups, including Athabasca Dene and Ghotelnene K'odtineh Dene, and with all respect to the Inuit, who are not here, we spent a tremendous amount of time, and the overlap agreements that we reached, which were the precursors to moving forward with these treaties, were called, by the former minister of indigenous affairs, models that should be applied across Canada.

Yes, we've done a tremendous amount of, basically, the crown's work, in figuring it out. When we did figure it out the first time, the crown said to us, “Well, we told you to go figure it out, but that's not our deal. We'll have to get a mandate to work on that”, and that took two years. Then we figured it out with the Athabasca Dene, and the crown said the same thing: “Well, we told you to figure it out, but that's not our deal”, and it took another three years before those deals were actually formalized in offers.

The second part of your question is about the dilemma we are now facing. We now have Canada signing on to UNDRIP and trying to decide how it is going to be implemented. We are on the cusp of a deal with Canada that is, quite frankly, looking to be a little stale-dated. That's the problem when these things drag on for so long.

What we've asked the Department of Justice to do, and we've had meetings with the minister's representative, is to include in our treaty clauses that would allow the treaty to evolve as Canada moves forward with the implementation of UNDRIP, as we are looking for novel and unique solutions that work. Despite the fact that we have certainty provisions in our treaty, we also want to have a true treaty relationship that is a beginning and not a divorce, and one that would evolve with the UNDRIP implementation.

I'm sorry for my overtime.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you.

That's all right. We're very good.

MP Cathy McLeod.

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

Thank you, Madam Chair.

You touched on something that I was thinking as I listened to the two presentations about Athabasca and Northlands: I wish I had a map. Is there a map that has both?

[Wayne Wysocki]

There are maps in the briefing materials.

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

Okay. I didn't come across it because I was listening.

You manage, within your work, to deal with the issues. You said you managed to deal with the issues with the Inuit. So really the issue is with the territorial governments. Is that the same...?

[Wayne Wysocki]

We're facing exactly the same issues. There are slight differences, but fundamentally they're the same.

[Barry Hunter]

I think the easiest way to think about the GKD and the Athabasca folks is that about 90% of their territory is in what's now known as Nunavut, and about 10% is in what's now known as the Northwest Territories.

Ours is almost the direct reverse. We have about 70% of the Athabasca Denesuline traditional area in the Northwest Territories, and about 30% that's in.... The Denesuline people were right along what became the 60th parallel and the border, and that's where the problem is coming from. At the time, as was mentioned, when the treaty was signed, they were actually in the Northwest Territories.

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

Maybe I'll go to Mr. Madden. There are no issues in terms of the Manitoba Métis here. Is this another overlap issue?

[Jason Madden]

I think one issue is going to be how we actually reimagine or not get stuck in the current very narrow boxes we have vis-à-vis self-government, about what we think self-government is. I think the bigger challenge for the Métis is understanding that they want to build. They have a citizenship-based government that isn't necessarily tied to specific pieces of land, but that jurisdiction exists for its citizens throughout the province of Manitoba. I think it's a different jurisdiction issue.

I do want to raise just this, though. The crown is obligated to advance reconciliation, and all governments are actually a part of the crown. I just find it so shocking, for example, for pipelines. People are able to make difficult decisions. Trans Mountain is not popular. The NDP government is a little ticked off about that.

These decisions, though, have constitutional imperatives underlying them. It's not just about a pipeline. We're able to make those tough decisions—when governments, even 92 governments, don't like it—on issues that don't affect people's lives, lands, and existence, but we somehow hit inertia when it comes to aboriginal people.

I think that is deeply offensive. I think we have to start thinking about it in that way, shape, or form. That's why the courts smack you all the time on these issues, because this isn't honourable. The idea that we get to play hide and seek behind jurisdictions when reconciliation gets lost for another jurisdiction is just a non-issue.

For the Métis, it's the same. We're finally getting to the table. I think in the framework agreement that we build out we, attempt to say, “Look, if we can't do these one-shot deals where it takes 20 years, we need some off ramps where we're making progress”, because we can't hold people together, and also we lose political momentum if we're not constantly moving the yardstick, as opposed to the big bang theory, which you can hear in such comments as, “Well, by the time we get to the deal, it's stale, because the courts have moved further than governments were when the initial cabinet mandate was developed.”

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

I think it would be fair to say from your two presentations that the ask is very simple in terms of our recommendation as you outlined. Is that accurate?

[Wayne Wysocki]

Tell the Government of Canada to do the right thing. We have a deal. It's fully within their legal authority to implement the deal. Not only that, they're obligated. The honour of the crown demands that this government move forward with this agreement.

We've spent 18 years. This government had no problem telling the provinces and the territories that there was a deadline to legalize marijuana—no problem at all. It had no problem telling the Government of British Columbia that they're going to build a pipeline across British Columbia. As Mr. Madden says, why is it when it's an indigenous issue it is so difficult when you have to ponder what type of framework we need to figure out how to do it?

There's a deep bias to making these decisions; it needs to be acknowledged and it has to be changed. This government said they were going to do it. I urge you as committee members and parliamentarians to do everything you can to get them to do it.

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

Both of you are at the same stage of being ready and just needing the dotted line signed. Is that accurate?

[Wayne Wysocki]

That's right.

[The Chair, Liberal, MaryAnn Mihychuk]

You have a minute and a half remaining.

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

I'll go to the Manitoba Métis.

Where do things stand with the Daniels decision, from your perspective, looking at how you are going to act and what action will come out of this?

[Jason Madden]

It has not advanced far. What we're hoping to have in the next period of time for the Manitoba Métis is a co-developed cabinet mandate to go forward to make progress on these things.

From the Métis perspective, you have the inverse of what you've probably been hearing from first nations. Many first nations are trying to get out of the Indian Act, and there are challenges associated with that, whereas the Métis have never been in it and don't want parts of it either.

The problem, though, given the way the system is set up and that INAC is self-perpetuating, is that unless you provide a framework that allows the Métis to skip over or not get into what I call the dumpster fire of INAC programming, they're going to use that as the proxy.

What you really need to recognize, and what we hope the department split is indicative of, is a desire to make the investments in the Métis government. Let's not create new entitlement programs. Let's not create programs that don't necessarily meet the needs of the Métis. Instead, allow them to design programming that meets the unique needs they have, rather than replicating a failed system.

What's needed there is innovation and vision and, to be quite frank, taking a risk by saying that we're not going to wait 18 years to get a deal. That's what we're optimistic about seeing: that there will be progress.

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

Thank you.

[The Chair, Liberal, MaryAnn Mihychuk]

To conclude our questioning, we go to MP Romeo Saganash.

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

Thanks for the presentations. I think all three of the presentations touched upon one of the most complicated and complex issues in land claims, and that's the overlapping interests over the lands we're talking about in these negotiations.

I hope I can get to Wayne. I want to start with the first presentation.

The land issue will probably be one of the most difficult ones in your discussions. It was rightly pointed out by Wayne that the Royal Proclamation did not talk about Métis. It talked about Indian nations and tribes and the territories that still belonged to them, saying that they should not be molested or disturbed in those territories. That's the language of the Royal Proclamation.

Then we have sections 92 and 93 in the Constitution Act of 1867, which still did not mention Métis, although I'm aware of the Eskimo reference case, in which the Supreme Court said that the term Indian includes the Inuit.

How do you propose to reconcile the reality that the land issue is going to be probably the most challenging in these discussions? I agree with what you claimed from the outset about the sovereignty of Canada over these lands. I think the Supreme Court has rightly pointed out, in talking about reconciliation, that the objective is to reconcile the pre-existing sovereignty of indigenous peoples with the assumed sovereignty of the crown, which are the terms of the Supreme Court of Canada. I take “assumed sovereignty of the crown” to mean that they just took over without permission from indigenous peoples.

How do you foresee that part of your discussions?

[Jason Madden]

Daniels does answer that question. It answers the question, similar to the Eskimos reference, that Métis are included in the term Indians in section 91.24 of the Constitution Act, 1867.

They say, “Look at the way the term Indian...” There's no such thing as an Indian in this country. We would have an even more absurd discussion if Columbus was looking for Turkey. This is a term ascribed to Haida, to Tlicho, to Gwich'in. It is nothing magical. It is about indigenous peoples, and the Métis were one of those indigenous peoples recognized in the Royal Proclamation of 1763, as well as in the Constitution Act of 1867. That has been asked and answered. I don't think it is an issue.

Another pet peeve of mine is that I hate the term overlap. I remember Tlicho elders always saying, “Well, you know what this meant historically?” That's colonial language of saying it's overlap. It just meant that the land was good, that we shared it well, and that it was good places to go. I like that concept, as opposed to this dichotomy of us and them.

I think Canada needs to also have a broader discussion. We need to understand land differently. It's not a colonial context with a binary of I own it and you don't. There is a way that we share and come with our own sovereignty and jurisdictions and we weave it together. That's how the MMF describe it. They say, “Look, we have our jurisdictions as the Métis nation. You have your jurisdiction of Canada. The provinces have their jurisdictions and what we're working through together with self-government is weaving those jurisdictions together, not overlapping or one trumping the other. That's how we approach it.” Those discussions also have to happen with first nations, because this idea that Métis don't need a land base, or aren't deserving of a land base, or that it wasn't a part of who they were either, is fundamentally flawed.

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

Is there any reaching out to other first nations?

[Jason Madden]

I think that the discussion has begun.

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

Where's that?